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Friday, December 2, 2016

UPTET SARKARI NAUKRI News -मित्रो आज नए विज्ञापन वालो के लिए बहुत बड़ी खुशखबरी -

UPTET SARKARI NAUKRI   News -मित्रो आज नए विज्ञापन वालो के लिए बहुत बड़ी खुशखबरी 



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मित्रो आज नए विज्ञापन वालो के लिए बहुत बड़ी खुशखबरी |||||
आज माननीय दीपक मिश्रा जी की कौर्ट नम्बर 3 में हमारी परमादेश की दूसरी बार सुनवाई हुई जोकि 6-7मिनट चली 
जिसमे हमारे सीनियर अधिवक्ता ने 16वे संशोधन की बात रखी और बताया कि हमारा विज्ञापन ncte से परमीशन के बाद प्रशिक्षु शिक्षक पद का सृजन 16वे संशोधन में करके निकला हैं 
इससे पहले बेसिक शिक्षा नियमावली में बीएड वालो के लिए पद का सृजन प्राइमरी में नही था और संशोधन 16 रद्द भी नही हैं तब भी सरकार भर्ती नही कर रही जबकि रद्द 15th अमेंडमेंट पर 90000 से अधिक भर्ती कर चुकी है 
और ये ऐसे लोगो की रिट हैं जो सिर्फ नए ऐड 7-12-2012 में आवेदक हैं और ये बीएड वालो के लिए आखिरी भर्ती है 
जज साहब बोले कि आप लोग इस ईशू पर हाई कोर्ट क्यों नही गए तब एडवोकेट ने कहा कि हमारी टेट की समयसीमा खत्म हो गई हैं और आपके आदेशानुसार अंतिम निर्णय तक बढ़ गई है इसलिये हम आर्टिकल 32 से आये है 
हमारे ऐडवोकेट ने कोर्ट को बताया कि विधानसभा में बेसिक शिक्षा मंत्री ने बोला हैं कि हमारे दोनों विज्ञापन अलग अलग हैं इसको उन्होंने पढ़ा जोकि हमने ग्राउंड भी बनाया हैं 
और भी नए ऐड के फेवर में कई बाते हुई जोकि बताना उचित नही हैं 
दीपक मिश्रा जी ने मुस्कुराते हुए कहा कि ये मामला बहुत intresting है और उन्होंने हमारी रिट को उत्तर प्रदेश के स्पेशल कॉउंसल श्री रवि प्रकाश मेहरोत्रा जी को सर्व कराके जबाब लगाने को बोला हैं 
और जो लोग पीयूष भाई की दोनों ऐड पर भर्ती की मांग की परमादेश ख़ारिज होने पर बोल रहे थे नया ऐड बहाल नही हो सकता आज ये सिद्ध हो गया कि न्यू ऐड हम बहाल कराके दम लेगे 
फिर जज साहब हमारे मामले की डेट जनवरी में लगा रहे थे फिर 22 फरबरी को टैग करते हुए बोले कि उस दिन फुल डे मैटर चलेगा इसलिये अब इसे 22 को टैग कर दो 
बाकि बाते बाद में 
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TNTET : Tamil Nadu TET : Supreme Court of India Judgement on NCTE Guidelines, Weightage & its Powers in case of TNTET & selection process

TNTET : Tamil Nadu TET : Supreme Court of India Judgement on NCTE Guidelines, Weightage & its Powers in case of TNTET & selection process  








 http://supremecourtofindia.nic.in/FileServer/2016-11-09_1478685108.pdf.



C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10700 OF 2016 (Arising out of SLP (C) NO. 29245/2014) V. LAVANYA & ORS. APPELLANTS Versus STATE OF TAMIL NADU REPRESENTED BY ITS PRINCIPAL SECRETARY & ORS. RESPONDENTS WITH CIVIL APPEAL NOS. 10715-10716 OF 2016 (ARISING OUT OF SLP (C) NOS. 29353-29354 OF 2014) CIVIL APPEAL NO. 10720 OF 2016 (ARISING OUT OF SLP (C) NO. 29634/2014) CIVIL APPEAL NO. 10726 OF 2016 (ARISING OUT OF SLP (C) NO. 29715 OF 2014) CIVIL APPEAL NOS. 10731-32 OF 2016 (ARISING OUT OF SLP (C) NO.32238-32239 OF 2014) CIVIL APPEAL NO. 10737 OF 2016 (ARISING OUT OF SLP (C) NO.32240 OF 2014) CIVIL APPEAL NO. 10736 OF 2016 (ARISING OUT OF SLP (C) NO. 32241 OF 2014) CIVIL APPEAL NO. 10735 OF 2016 (ARISING OUT OF SLP (C) NO.34978 OF 2014) CIVIL APPEAL NO. 10734 OF 2016 (ARISING OUT OF SLP (C) NO. 32160 OF 2014) CIVIL APPEAL NO. 10733 OF 2016 (ARISING OUT OF SLP (C) NO. 34568 OF 2014) CIVIL APPEAL NOS. 10727-10730 OF 2016 (ARISING OUT OF SLP (C) NOS. 33127-33128 OF 2014) Page No. 1 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. CIVIL APPEAL NO. 10725 OF 2016 (ARISING OUT OF SLP (C) NO. 6543 OF 2015) CIVIL APPEAL NOS. 10721-10723 OF 2016 (ARISING OUT OF SLP (C) NOS. 26461-26463 OF 2015) CIVIL APPEAL NO. 10719 OF 2016 (ARISING OUT OF SLP (C) NO. 26464 OF 2015) CIVIL APPEAL NOS. 10701-10714 OF 2016 (ARISING OUT OF SLP (C) NOS. 31629-31642 OF 2014) [PETITIONS BY WAY OF SPECIAL LEAVE ARISING OUT JUDGMENTS DELIVERED BY MADRAS BENCH] AND CIVIL APPEAL NOS.10717-10718 OF 2016 (ARISING OUT OF SLP (C) NOS. 26256-26257/2015) [PETITION BY WAY OF SPECIAL LEAVE @ JUDGMENT DELIVERED BY MADURAI BENCH] STATE OF TAMIL NADU REPRESENTED BY ITS SECRETARY TO GOVT., SCHOOL EDUCATION (TRB) DEPARTMENT AND ORS. APPELLANTS V. S. VINCENT AND ORS. RESPONDENTS J U D G M E N T R. BANUMATHI J. Leave granted. 2. The present batch of appeals raise identical questions of law and fact concerning appointment of Secondary Grade Teachers and B.T. Assistants in the State of Tamil Nadu as per the Guidelines prescribed by National Council for Teacher Education (hereinafter referred to as the NCTE) in this Page No. 2 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. regard. These appeals impugn the conflicting judgments passed by both Madras and Madurai Bench of the High Court of Madras in W.A. No. 1031/2014 & Others. dated 22.09.2014; and W.P. No. 4558/2014 dated 25.09.2014 respectively. The dispute revolves around the relaxation of 5% marks to the reserved category candidates in the State Teachers Eligibility Test (hereinafter referred to as the TET) approved by the State Government, which is allegedly in contravention of the norms to that effect embodied in the notification dated 23.08.2010 issued by the NCTE. 3. Pursuant to the mandate of Right of Children to Free and Compulsory Education Act, 2009 ("the RTE Act"), the NCTE laid down minimum qualifications for a person to be eligible for appointment as a Teacher through a Notification dated 11.02.2011. As per the said Notification: “…to be eligible for appointment as a teacher if any of the schools referred to in clause (n) of section 2 of the RTE Act is that he/she should pass the teacher eligibility test (TET) which will be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE”. NCTE Guidelines prescribed 60% marks to be declared as pass in TET. The said Guidelines enabled the State Government to grant concession to persons belonging to Scheduled Castes/Scheduled Tribes, other Backward Classes, differently-abled persons etc. Page No. 3 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. 4. In pursuance of the provisions of the Act, the State Government enacted the Tamil Nadu Right of Children to Free and Compulsory Education Act, 2011. State Government issued Order No. G.O.Ms.No.181 dated 15.11.2011, prescribing 60% marks as pass marks for TET under the said G.O. The Teacher Recruitment Board was appointed as the Nodal Agency for conducting the TET and recruitment of teachers. Subsequently, the State Government vide G.O.(Ms.) No.252 School Education (Q) Department dated 05.10.2012 issued the Procedure/Guidelines for State Teachers’ Eligibility Test. The said Guidelines earmarked 60% marks for State eligibility test and the remaining 40% for academic performance of the candidates. The 40% performance-based marks were divided into 10 marks and 15 marks each for the Higher Secondary Examination/Degree Examination and D.T.Ed/B. Ed. examination respectively. 5. The Teachers Recruitment Board conducted the first TET-Paper I (Secondary Grade Teacher) and Paper II (Graduate Teacher) on 12.07.2012 throughout the State in which 7,14,526 candidates appeared and 2448(0.3%) were successful. The details of number of the candidates who appeared and who passed are as under:- Exam No. of candidates who appeared No. of candidates who passed % of pass Paper I 3,05,405 1,735 0.57% Paper II 4,09,121 713 0.17% Total 7,14,526 2,448 0.34% Page No. 4 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. A supplementary TET was also conducted on 14.10.2012 for Paper I and Paper II in which all the candidates who had appeared in the first examination and had not secured 60% marks were allowed to appear without any additional examination fee. Around six lakh candidates appeared in the said exam, out of which 19,261 (around 3%) only cleared the TET. The details are as under:- Exam No. of candidates who appeared No. of candidates who passed % of pass Paper I 2,78,725 10,397 3.7% Paper II 3,64,370 8,864 2.4% Total 6,43,095 19,261 2.9% 6. The third TET which is the subject matter of the present challenge was conducted by the Teacher Recruitment Board in two papers viz., Paper I and Paper II on 17.08.2013 and 18.08.2013 respectively. The TET was conducted pursuant to Notification dated 22.05.2013 by which 10,672 vacancies of BT Assistants was advertised. As per the Notification, TET is only a pre-requisite eligibility test for those who are seeking appointment as a teacher; a TET certificate issued will be valid for seven years from the date of its issuance and recruitment of teachers will be conducted separately as and when there is a need, following the Guidelines issued by the State Government. Around 16,000 candidates qualified TET with more than 60% marks. In January, 2014, candidates who had obtained 60% or more were called for Certificate Verification (CV). Verification of certificates was done as per the G.O. (Ms.) No. 252 dated 05.10.2012 and weightage marks were Page No. 5 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. also awarded. However, recruitment of teachers and appointment thereof was not done. 7. In the meanwhile, the Hon’ble Chief Minister announced on the floor of the Assembly, relaxation of 5% marks in the passing marks of 60% and thus prescribed the passing marks as 55% for the candidates belonging to Scheduled Caste, Schedule Tribes, Backward Classes, Backward Classes (Muslim), Most Backward Classes, De-notified Communities and Persons with Disability (PWD). In tune with the announcement, the State Government issued orders in G.O.Ms.No.25 School Education (TRB) Department dated 06.02.2014 in which relaxation of 5% of marks was given to the candidates belonging to SC, ST, BC, BC(M), MBC, DNC and PWD candidates. However, minimum qualifying marks with regard to general candidates was retained as 60% or 90% marks in both the papers. Relevant portion of the said G.O. (Ms.) No.25 dated 06.02.2014, reads as under:- “In continuation of the announcement made by the Hon’ble Chief Minister, the Government orders as follows: a) Relaxing 5% marks from the present pass marks of 60% and fix the pass mark at 55% for candidates belonging to Scheduled Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslim), Most Backward Classes, De-notified Communities and Persons with Disability (PWD) as given below. The candidates are required to obtain the following minimum marks in Paper I for Secondary Grade Teachers and Paper II for Graduate Assistants:- Category Maximum Marks Minimum Marks (%) to be obtained in TNTET Paper I Paper II General 150 60% or 90 marks 60% or 90 marks SC, ST, BC, BC(M), MBC, DNC and 150 55% or 82.5 marks rounded off to 82 55% or 82.5 marks rounded off to 82 marks Page No. 6 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Persons with Disability (PWD) marks b) Relaxing 5% marks from the 60% marks prescribed for clearing of the Tamil Nadu Teacher Eligibility Test, 2013 held on 17.08.2013 and 18.08.2013 for Scheduled Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslims), Most Backward Classes, De-notified Communities and Persons with Disability (PWD) and fixed at 55% or 82 marks. C) For all future Teacher Eligibility Tests, to fix the minimum marks for candidates belonging to General Category at 90 marks (60% of 150) and for candidates belonging to Scheduled Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslims), Most Backward Classes, De-notified Communities, and Persons with Disability (PWD) at 82 marks (55% of 150).” The said relaxation of 5% marks was held applicable to TET held on 17.08.2013 and 18.08.2013 and all future TETs for the reserved category candidates. 8. Vide G.O.Ms. No. 29 School Education (Q) Department dated 14.02.2014, corresponding amendments were made in criteria for selection of candidates who have cleared the TET for appointment to the post of Secondary Grade Teachers and Graduate Assistants prescribed in G.O. dated 05.10.2012. The said order laid down the weightage of marks under TET head as ‘36’ for those candidates who obtain 55% and above but below 60% marks in TET. The order also specified that the amended selection criteria would be applicable to TET held on 17.08.2013 and 18.08.2013. Relevant portion of the said G.O. reads as under: “Tamil Nadu Teacher Eligibility Test for Secondary Grade Teachers and Graduate Assistants:- Examination passed Weightage of marks 90% and above 80% and above but below 70% and above but below 80% 60% and above but below 70% 55% and above but below 60% Page No. 7 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. 90% TNTET 60 60 54 48 42 36 4. The Chairman, Teachers Recruitment Board is directed to take note of this Government order for finalizing selection list of the Tamil Nadu Teacher Eligibility Test 2013 held on 17.08.2013 and 18.08.2013 and for all future Tamil Nadu Teacher Eligibility Test with respect to candidates belonging to Scheduled Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslims), Most Backward Classes, De-notified Communities and Persons with Disability (PWD).” 9. Resultantly, a number of writ petitions were filed before the High Court challenging the Government Orders passed in G.O.Ms.No.252 School Education(Q) Department, dated 05.10.2012, G.O.Ms.No.25 School Education (TRB) Department dated 06.02.2014 and G.O.Ms.No.29, School Education (TRB) Department dated 14.02.2014 on different grounds. The Writ Court disposed of these petitions by upholding the validity of G.O.Ms.No.25, School Education (TRB) Department dated 06.02.2014. However, the learned Single Judge set aside the grading system adopted by the Government in G.O. Ms. No. 252 dated 05.10.2012 observing that it lacks rationality as it places a candidate with the difference of 1 to 9 marks in the same basket. 10. Pursuant to the order passed by the learned Single Judge, while continuing with the weightage of marks fixed earlier as per the Government Order passed in G.O.Ms.No.252 School Education (Q) Department, dated 05.10.2012 with reference to the basic qualification marks, the State Government passed a subsequent order in G.O.(Ms.) No.71 School Education (TRB) Department dated 30.05.2014 in tune with the suggestion Page No. 8 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. made by the learned Single Judge. Relevant portion of the said G.O.(Ms.) No.71 dated 30.05.2014, is as under: “7. The Government now issue revised orders for fixing the weightage and for distributing the weightage marks fixed in the light of the High Court orders as mentioned in para 5 above for selection of candidates for appointment to the post of Secondary Grade Teachers and Graduate Assistants in Government Schools from among those candidates who have cleared the Tamil Nadu Teacher Eligibility Test. The weightage of marks and the distribution of weightage of marks be fixed as follows:- A) Tamil Nadu Teacher Eligibility Test Weightage for Secondary Grade Teachers (a) There shall be 100 marks in total (b) The computation of 100 marks will be in the following manner (i) Higher Secondary Exam : 15 marks (ii) D.T.Ed.,/D.E.Ed., Exam : 25 marks (iii) Teacher Eligibility Test : 60 marks The weightage so assigned as indicated in (b) above to be distributed based on the actual percentage of marks obtained by the candidate in the qualifying examinations as shown below:- B) Tamil Nadu Teacher Eligibility Test Weightage for Graduate Assistants: (a) There shall be 100 marks in total (b) The computation of 100 marks will be in the following manner (i) Higher Secondary Exam : 10 marks (ii) Degree Exam : 15 marks (iii) B.Ed., Exam : 15 marks (iv) Teacher Eligibility Test : 60 marks The weightage so assigned as indicated in (b) above to be distributed based on the actual percentage of marks obtained by the candidate in the qualifying examinations as shown below:- Page No. 9 of 34 Qualifying Examinatio n Weightage of marks Percentage of marks obtained in the qualifying examination Marks assigned H. Sc. 15 P% P x 15 100 D.T.Ed.,/ D.E.Ed., 25 Q% Q x 25 100 TET 60 R% R x 60 100 Total 100 xxxxx
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Qualifying Examination Weightage of marks Percentage of marks obtained in the qualifying examination Marks assigned H.Sc. 10 P% P x 10 100 Degree 15 Q% Q x 15 100 B.Ed. 15 R% R x 15 100 TET 60 S% S x 60 100 Total 100 xxx The Government Order passed in G.O.(Ms.) No.71 School Education (TRP) Department dated 30.05.2014 was challenged both on the ground of weightage having been awarded for the marks obtained in three qualifications and also the method of gradation. 11. The High Court of Judicature at Madras heard various writ petitions and writ appeals filed before it challenging the concerned G.Os and by the orders impugned herein disposed of the same. The High Court dismissed the writ appeals as well as the writ petitions holding that the challenge to the policy decision of the Government can sustain only if it suffers from arbitrariness and unreasonableness which did not surface in these cases. It was held that the writ petitioners/writ appellants are non-suited to challenge the procedure adopted in granting weightage to the marks obtained in the basic qualification required. Page No. 10 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. 12. As opposed to the view taken by the Madras Bench of the High Court, in a batch of writ petitions, the Madurai Bench has quashed the relaxation given to the reserved category candidates. The Madurai Bench also heard the challenge to Government Orders passed in G.O.Ms.No.252 School Education (Q) Department, dated 05.10.2012, G.O.Ms.No.25 School Education (TRB) Department dated 06.02.2014 and G.O.Ms.No.29, School Education (TRB) Department dated 14.02.2014 and held that in the absence of any statistics to prove that the prescription of 60% marks resulted in fewer number of candidates belonging to reserved categories getting appointed, it is not possible to uphold the Government Order. The Court further observed that the argument that relaxation was necessary to advance social justice, is nothing but a myth and is devoid of any factual data and analysis. 13. These petitions by way of special leave have been filed challenging the two contradicting decisions of the Madras Bench and Madurai Bench of the Madras High Court. For the sake of convenience, unless otherwise expressly mentioned, the term appellant has been used to refer to the private parties or original writ petitioners. Contention of the appellants is that after the Select List was finalized on the basis of G.O.Ms. No. 252 dated 05.10.2012, marks were awarded to all the candidates as per Government Order and all the candidates were awaiting the order of appointment and thereafter, Government issued orders in G.O.Ms. No. 25 School Education Page No. 11 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Department relaxing 5% marks with respect to candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, Most Backward Classes, Backward Classes (Muslims) De-notified communities and differently-abled persons by which the pass marks was reduced to 55% from 60% and G.O.Ms. School Education No. 29 dated 14.02.2014 was issued amending the criteria for selection prescribed in G.O.Ms. 252 dated 05.10.2012. It was submitted that the Government has reduced the passing percentage for qualifying in the TET and changed the criteria for selection after the commencement of the selection process, which is arbitrary, illegal and violative of Article 14 of the Constitution of India. In this regard, reliance was placed upon K. Manjushree v. State of Andhra Pradesh and Anr. (2008) 3 SCC 512 and Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11 to contend that it is impermissible to change the rules of selection once the selection process has started. 14. Per contra, learned counsel appearing for the State submitted that relaxation has been extended by the State Government only to the reserved category candidates. It was submitted that Clause 9 of the NCTE Guidelines for conducting TET empowers the State Government to give concessions/relaxations to candidates belonging to reserved categories and the State Government in exercise of its power under Clause 9 of the NCTE Guidelines granted relaxation and the same cannot be challenged. It is Page No. 12 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. submitted that the TET examination is a qualifying examination and after writing the examination and after accepting the rules and terms of selection in the first place, the appellants cannot challenge the procedure adopted by the respondent-State and challenge the weightage of marks. It was submitted that the Madras Bench has rightly upheld G.O. (Ms.) No. 25 dated 06.02.2014, G.O.Ms. No. 29 dated 14.02.2014 and G.O.Ms. No. 71 dated 30.05.2014 and the contrary view taken by the Madurai Bench is unsustainable. 15. Upon consideration of the rival submissions and perusal of the impugned judgments, the following issues arise for consideration:- (i) Whether the State Government has the competence to give relaxation of 5% marks in Teacher Eligibility Test (TET) and whether such relaxation provided by the State Government by G.O.(Ms.) No.25 dated 06.02.2014 is legally justified? (ii) Having regard to the stand of the Government in the earlier round of Writ Petitions in Writ Petition No.30426 of 2012 and 22407 of 2013, not to relax the qualifying marks for Teacher Eligibility Test (TET), whether Government is estopped from granting relaxation? (iii) Whether providing relaxation of 5% marks in Teacher Eligibility Test (TET) by G.O.(Ms.) No.25 dated 06.02.2014 amounts to change in the criteria of selection of teachers after the selection process commenced? (iv) Whether prescribing 40% marks as weightage for the academic performance is arbitrary and does not take into consideration different streams of education and subjects of study? Point No. 1: Whether the State Government has the competence to give relaxation of 5% marks in Teacher Eligibility Test (TET) and whether such Page No. 13 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. relaxation provided by the State Government by G.O.(Ms.) No.25 dated 06.02.2014 is legally justified? 16. In exercise of the power conferred under Section 23 (1) of Right of Children to Free and Compulsory Education Act 35 of 2009, a Notification was issued by NCTE prescribing the minimum qualification for a person to be eligible for appointment as a teacher in Class I to VIII in a school referred to in clause (n) of Section 2 of Act 35 of 2009. Notification dated 23.08.2010 was followed by Guidelines dated 11.02.2011 issued by the NCTE for conducting TET under the Act. Guideline No.9 deals with qualifying marks, which reads as under:- “Qualifying marks.- 9. A person who scores 60% or more in the TET exam will be considered as TET pass. School managements (Government, local bodies, government aided and unaided) (a) may consider giving concessions to persons belonging to SC/ST, OBC, differently abled persons, etc., in accordance with their extant reservation policy; (b) should give weightage to the TET scores in the recruitment process; however, qualifying the TET would not confer a right on any person for recruitment/employment as it is only one of the eligibility criteria for appointment.” While prescribing 60% marks as minimum qualifying marks for TET, Clause 9 enables concerned government/authorities to grant concessions/relaxation to persons belonging to SC/ST, OBC, differently-abled persons, etc., in accordance with their extant reservation policy. 17. As noticed earlier, the Government of Tamil Nadu in G.O.(Ms.) No.252 School Education (Q) Department dated 05.10.2012 fixed the criteria for Page No. 14 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. selection of candidates who have cleared the TET for appointment to the post of Secondary Grade Teachers and B.T. Assistants. As per the said Government Order, out of the 100 marks, 40 marks have been earmarked for academic performance. Remaining 60 marks out of 100 has been fixed for the TET. A Notification was issued by the Teachers Recruitment Board on 22.05.2013 for the conduct of TET, followed by recruitment of teachers. Clause 6 of the Notification, which deals with “General Information”, makes it clear that the TET is only a pre-requisite eligibility test for those who are seeking appointment as a teacher and that a TET certificate issued will be valid for seven years from the date of its issuance. Recruitment of teachers is conducted separately as and when there is a need, following the Guidelines issued by the Government of Tamil Nadu. Accordingly, it was notified to the candidates that TET is only an eligibility test and conducting of the same is distinct from the recruitment of teachers, which is a subsequent event. 18. Section 23 of the RTE Act empowers the Central Government to authorize the academic authority to prescribe minimum qualification to be eligible for appointment of teachers. Once the academic authority fixes the minimum qualification, then the relaxation is possible only under Section 23(2). Sub-section (2) enables the State to approach the Central Government to relax the minimum qualification required for appointment of Page No. 15 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. teachers, where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualification as laid down under sub-section (1) are not available in sufficient numbers. On such request, the Central Government may, if it deems necessary, by Notification, relax the minimum qualification required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that Notification. In terms of Section 23 (2) power to relax such minimum qualification has been reserved with the Central Government. 19. Contention of the appellants is that Section 23 (2) of the RTE Act requires the State/Union Territories to request the Central Government for relaxation of prescribed minimum qualification to be eligible for appointment of teachers and the power to relax the minimum qualification is exclusively within the domain of the Central Government and the same does not rest with the State Government or NCTE. It is further submitted that the High Court without properly appreciating the import of Section 23 of the Act, and Rules 17 and 18 of the Rules, erroneously held that Clause No. 9 of NCTE Guidelines dated 11.02.2011 empowered the State to make such relaxation. It was submitted that the Guidelines of NCTE cannot be contrary to the provisions of the Act and the Rules. 20. Per contra, the respondent-State has maintained that the Government was well within its powers to take a policy decision of granting relaxation to Page No. 16 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. the reserved category candidates. In this regard, the State has placed reliance on Clause No.9 of NCTE Guidelines which empowers the Government or local bodies to grant concessions/relaxation as per their respective reservation policies. 21. As noted earlier, Clause No.9 NCTE Guideline vests a discretion in the School Managements (State Government, Local Bodies, Government aided and un-aided) to grant relaxation/concessions to persons belonging to SC/ST, OBC, differently-abled persons etc. in accordance with their extant reservation policy. Clause No. 9(a) clearly empowers the State Government/School Managements/Local Bodies to grant such relaxation. Candidates had also contended before the courts that no reservation policy was in-effect at the relevant point of time. 22. Article 14 of the Constitution enshrines the principle of equality before law. Article 15 prohibits discrimination against citizens on grounds only of religion, race, caste, sex, place of birth or any of them. As per Article 16, there shall be equality of opportunity for all citizens in matters relating to employment, or appointment to any office under the State. However, at the same time, the framers of the Constitution were conscious of the backwardness of large sections of the population. It was also apparent that because of their backwardness, these sections of the population would not be in a position to compete with advanced section of the community. Article Page No. 17 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. 16 (4) of the Constitution enables the State to make provision for reservation of appointments or posts in favour of any backward class of citizens which, in its opinion, is not, adequately represented in the services under the State. Article 16(4) has to be read with Article 335 which deals with claims of Scheduled Castes and Scheduled Tribes to services and posts and lays down that “the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State”. 23. Constitution of India has made adequate enabling provisions empowering the State to promote reservation/concessions: Special provisions are made for advancement of the socially and economically backward classes. These provisions will bring out the contents of equality of opportunity guaranteed under Articles 14, 15 (1), 16 (1) of the Constitution of India by creating equal level-playing field. In M. Nagaraj and Others v. Union of India and Others (2006) 8 SCC 212, Constitution Bench of this Court held as follows:- “47. Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide a level-playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results with respect to various groups. Both the conceptions constitute “equality of opportunity”.” Page No. 18 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. 24. Preferential treatment or concessions granted to SC/ST, backward classes, physically handicapped and denotified communities is within the concept of equality. Grant of relaxation is for the upliftment of Scheduled Castes and Scheduled Tribes and other backward communities and the same has been eloquently stated in State of Madhya Pradesh and Anr. v. Kumari Nivedita Jain and Others (1981) 4 SCC 296 as under:- “26. It cannot be disputed that the State must do everything possible for the upliftment of the Scheduled Castes and Scheduled Tribes and other backward communities and the State is entitled to make reservations for them in the matter of admission to medical and other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective and would benefit the candidates belonging to these categories for whose benefit and welfare the reservations have been made. In any particular situation, taking into consideration the realities and circumstances prevailing in the State it will be open to the State to vary and modify the conditions regarding selection for admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made and if there be no law to the contrary. Note (ii) of Rule 20 of the Rules for admission framed by the State Government specifically empowers the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary…..The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes for admission into Medical Colleges cannot be said to be unreasonable and the said relaxation constitutes no violation of Article 15(1) and (2) of the Constitution. The said relaxation also does not offend Article 14 of the Constitution. It has to be noticed that there is no relaxation of the condition regarding eligibility for admission into Medical Colleges. The relaxation is only in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes categories who were otherwise qualified and eligible to seek admission into Medical Colleges only in relation to seats reserved for them….” 25. The idea behind laying down NCTE Guidelines for conducting TET was to bring about uniformity and certainty in the standards and quality of education being imparted to the students across the nation. However, at the same time the framers of the guidelines took note of the huge Page No. 19 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. socio-economic disparity existing in the nation and accordingly, by virtue of Clause No. 9 enabled the respective state governments/authorities to provide relaxation to the candidates belonging to socially backward classes. As discussed earlier, such a provision is in line with the principles enshrined in the Constitution. State Government cannot be faulted for discharging its constitutional obligation of upliftment of socially and economically backward Communities by providing 5% relaxation to candidates belonging to Scheduled Caste, Schedule Tribes, Backward Classes, Backward Classes (Muslim), Most Backward Classes, De-notified Communities and Persons with Disability (PWD). 26. State of Rajasthan by its Notification dated 29.07.2011 has granted similar relaxation of 5% marks in the qualifying marks relatable to TET exams conducted in the State of Rajasthan. The Rajasthan High Court struck down the relaxation granted by the State of Rajasthan on the ground that such relaxation was in excess of extant reservation policy. In Vikas Sankhala and Ors. v. Vikas Kumar Agarwal and Ors. Etc. (2016) 10 SCALE 163, this Court reversed the judgment of the Rajasthan High Court holding that State has a legitimate right in granting such relaxation to SC/ST, OBC etc. After referring to Nivedita Jain and M. Nagaraj case, this Court in paras (51), (54) and (55) held as under:- “51. Examined in the aforesaid context, when our Constitution envisages equal respect and concern for each individual in the society and the attainment of the goal requires special attention to be paid to some, that Page No. 20 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. ought to be done. Giving of desired concessions to the reserved category persons, thus, ensures equality as a levelling process. At jurisprudential level, whether reservation policies are defended on compensatory principles, utilitarian principles or on the principles of distributive justice, fact remains that the very ethos of such policies is to bring out equality, by taking affirmative action. Indian Constitution has made adequate enabling provisions empowering the State to provide such concessions. …….. 54. It hardly needs to be emphasized that the State has a legitimate and substantial interest in ameliorating or eliminating where feasible, the disabling effects of identified discrimination. It is a duty cast upon the State, by the Constitution, to remedy the effects of “societal discrimination”. Provision for relaxation in TET pass marks has to be looked into from this angle which is in tune with the constitutional philosophy. After all it only ensures that such candidates belonging to reserved category become eligible for appointment as primary teachers. On the other hand, when it comes to selection process such reserved category candidates have to compete with general category candidates wherein due regard for merit is given. Therefore, only those candidates belonging to reserved category who are found meritorious in selection are ultimately appointed. We are of the opinion that in this manner the two constitutional goals, that of rendering quality education on the one hand and providing “equality of opportunity’ to the unprivileged class on the other hand, are adequately met and rightly balanced. 55. We, thus, do not agree with the interpretation that is given by the High Court and answer Question No.1 holding that relaxation prescribed in letter dated March 23, 2011 in pass marks in TET examination for different reserved categories mentioned therein is legal and valid in law.” We are entirely in agreement with the above judgment in Vikas Sankhala case. 27. Granting relaxation to SC/ST, OBC, physically handicapped and de-notified communities is in furtherance of the constitutional obligation of the State to the under-privileged and create an equal level-playing field. After referring to clause 9 of the NCTE Guidelines, the Madras High Court rightly held that the Government of Tamil Nadu has acted in exercise of the powers conferred under clause 9 of the Guidelines issued by the NCTE. Madurai Bench was not right in quashing G.O.(Ms.) No.25 dated 06.02.2014 Page No. 21 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. on the ground that such relaxation “based upon the theory of social justice is actually destructive of the very fabric of the social justice”. In our considered view, the judgment of the Madurai Bench has not kept in view the constitutional obligation of the State to provide equal level-playing field to the under privileged. In consonance with the M. Nagaraj case, an affirmative action taken by State Government granting relaxation for TET would not amount to dilution of standards and hence the view taken by the Madurai Bench is not sustainable and is liable to be set aside. Point No. 2: Whether the State Government is estopped from granting relaxation? 28. In the earlier round of litigation (in Writ Petition No. 30425 of 2012 and Writ Petition No.22407 of 2013), Government of Tamil Nadu took a categorical stand that they would not compromise on the quality of the teachers. After referring to the said stand of the State Government in its counter affidavit before the Division Bench, in paras (38) to (40) of the judgment, Madurai Bench observed that the State Government is not justified in retracting from its earlier stand. The Madurai Bench further observed that the impugned Government Order G.O.(Ms.) No. 25 dated 06.02.2014 is not based upon any statistics and therefore granting relaxation to advance social justice “…. is nothing but a myth and is not based on facts and figures”. On behalf of the appellants much reliance was placed upon the earlier stand of the Government to contend that when the Government Page No. 22 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. had earlier taken the stand that it would not grant relaxation of marks for TET pass and dilute the standards of education, the Government cannot approbate and reprobate at the same time by changing its stand. It was further submitted that the teachers are responsible for moulding the younger minds and any dilution of standards of TET would be detrimental to the standards of education. 29. We are unable to persuade ourselves to accept the view of Madurai Bench quashing the impugned G.O. on the ground of alleged change in the stand of the Government. Considering the representation from various quarters, it was a policy decision taken by the Government to relax marks for TET pass for specified and under-privileged communities. It is a matter of State policy to frame and prescribe selection norms with regard to services and posts connected with the affairs of the State. It is well-settled that courts cannot interfere with the policy decisions of the State especially when the policy decision is taken in public interest to further the advancement of reserved categories. A policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India is subservient only to the mandate of the constitutional provisions and the recruitment rules framed by the State itself, either in terms of a legislative act or an executive order. The relaxation provided by the State Government and criteria of selection laid down vide impugned government orders are in exercise of the powers provided under the proviso to Article 309 of the Page No. 23 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Constitution of India and being a policy decision in terms of its extant reservation policy cannot be impeached on the ground that the relaxation has been given to suit some specific class of individuals. 30. It is now well settled by a catena of decisions that there can be no question of estoppels against the Government in the exercise of its legislative, sovereign or executive powers (vide Excise Commissioner U.P., Allahabad v. Ram Kumar (1976) 3 SCC 540 and M. Ramanatha Pillai v. State of Kerala and Anr. (1973) 2 SCC 650). The view taken by Madurai Bench as regards the stand of the Government to relax the norms allegedly in contradiction to its earlier stand is not sustainable in law. Point No. 3: Whether providing relaxation of 5% marks in TET amounts to change in the criteria of selection of teachers after the selection process commenced? 31. The appellants have contended that the provisionally selected candidates were called to attend certificate verification on 23.01.2014 and 24.01.2014 and weightage marks were also awarded as per the then existing Government Order. While so, by issuing impugned G.O.Ms. No.25 dated 06.02.2014 and G.O.Ms. No. 29 dated 14.02.2014 the criteria of selection was altered by relaxing passing marks by 5% in TET from 60% to 55%, thereby allowing large number of candidates who scored lesser marks to be considered for selection. As per the appellants, this has resulted in altering the criteria of selection after the commencement of selection Page No. 24 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. process. Reliance is placed upon K. Manjushree v. State of Andhra Pradesh and Anr. (2008) 3 SCC 512 and Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11 to contend that the rules of selection cannot be changed after the selection process commenced. 32. Per contra, State has contended that granting relaxation of marks to SCs/STs/OBCs and others will not amount to change in the rules of the games. By relaxation of marks more candidates belonging to reserved category are allowed to compete. The appellants cannot contend that their rights have been taken away; no prejudice has been caused to them as the selection criteria has not been altered with respect to them. 33. Appellants appeared in the TET conducted on 17.08.2013 and 18.08.2013. Respondents were to select the suitable candidates. As per the selection criteria laid down in G.O. Ms. No. 252 laid down that the candidates have to secure minimum 60% in TET so as to qualify the said exam. The weightage of the marks secured in TET was 60% and that of academic qualification was 40%. It is true that the candidates who passed TET were called to attend certificate verification on 23.01.2014 and 24.01.2014; but the selection process has not been completed. Later on, G.O.Ms. No.25 dated 06.02.2014 was issued granting relaxation of 5% marks to SC, ST, backward classes, physically handicapped, de-notified communities etc. The purpose of relaxation was to increase the participation Page No. 25 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. of candidates belonging to backward classes in State’s pool of teachers. The State Government merely widened the ambit of TET so as to reach out to those candidates belonging to the deprived section of the society who were not able to compete, inspite of possessing good academic records and qualifications. The change brought about in the selection criteria is Government’s prerogative. In terms of their extant reservation policy, the State Government is free to take actions suitable to the socio-economic conditions prevalent in the State, especially with regard to selection of candidates belonging to reserved category to be employed in State Service. Merely, because the Government has widened the ambit of selection, so as to enable more and more candidates to take part in the selection process, the right of candidates who were already in the process cannot be said to have been adversely affected. It is in the interest of reserved category of candidates that more candidates take part in the selection process and best and most efficient of them get selected. This will not amount to change in the criteria for selection after the selection process commenced. 34. As discussed earlier, by virtue of NCTE Guidelines No.9 dated 11.02.2011, the State Government was already empowered to grant relaxation to under-privileged candidates and only in exercise of that power, G.O.Ms.No.25 was issued to create a level-playing field. Further as noted earlier, in TET-I conducted in 2012, 7,14,526 candidates had appeared and Page No. 26 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. only 2448 (0.3%) had qualified. In the subsequent TET, around 6 lakhs candidates had appeared and only 20,000 i.e. 3% candidates could clear the test. Even in third TET with which we are concerned only 16,392 candidates had qualified. In that scenario to provide a level-playing field to persons belonging to SC/ST/OBC, denotified communities, differently-abled persons etc., State Government relaxed 5% marks to enable them to compete with others. It was the prerogative of the State Government to relax the passing marks with respect to reserved category candidates so that more qualified candidates could come up and participate in the selection process. In fact, even after grant of relaxation of 5% marks, many posts of reserved categories are remaining unfilled. State has placed the figures before us to show that even after granting relaxation of 5% marks, many posts of SCs/STs and other backward categories in various subjects are remaining unfilled. 35. The Government has not changed the rules of selection so far as the present appellants are concerned. Weightage of marks obtained in TET as well as that of academic qualification is still the same. The entire selection process conforms to the equitable standards laid down by the State Government in line with the principles enshrined in the Constitution and the extant reservation policy of the State. It is not the case where basic eligibility criteria has been altered in the midst of the selection process. Page No. 27 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Conducting TET and calling for certificate verification thereafter is an exercise which the State Government is obliged to conduct every year as per the Guidelines issued by NCTE. By calling for CV along with certificates of other requisite academic qualifications, a candidate’s overall eligibility is ascertained and then he/she is recruited. Such an exercise by which qualified teachers in the State are segregated and correspondingly certified to that effect cannot be equated to finalization of select list which comes at a much later stage. No prejudice has been caused to the appellants, since the marks obtained by the appellants in TET are to remain valid for a period of seven years, based on which they can compete for the future vacancies. Merely because appellants were called for certificate verification, it cannot be contended that they have acquired a legal right to the post. Impugned G.O. Ms.No.25 did not take away the rights of the appellants from being considered on their own merits as pointed out by the Madras Bench. We entirely agree with the views taken by the Madras Bench that “by merely allowing more persons to compete, the petitioners cannot contend that their accrued right has been taken away”. 36. Appearing in TET is synonymous to obtaining an eligibility. By obtaining pass marks in TET a candidate is not said to have been recruited. Marks obtained in TET accounts only for 60% in the final selection and rest 40% is covered by academic performance. By granting relaxation of 5% Page No. 28 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. marks in TET for reserved categories only, the eligibility criteria is neither altered nor any prejudice is caused to the appellants. The contention of the appellants that the State Government cannot legally alter the selection criteria after conducting the exam does not find force in the light of view taken by a three Judge Bench of this Court in Tej Prakash Pathak and Ors. v. Rajasthan High Court and Ors. (2013) 4 SCC 540. In this case, the then Chief Justice of the concerned High Court ordered that examination conducted for the posts of ‘Translators’ be treated as competitive examination and only those candidates who secured a minimum of 75% marks be selected to fill up the posts in questions. In view of the decision of the Chief Justice, only three candidates were found suitable for appointment. This triggered the litigation. It was observed that there is difference between altering the basic eligibility criteria in the mid of the process of selection and altering the mere procedure of selection. 37. The State Government cannot be faulted for altering the selection criteria by relaxing 5% marks in favour of reserved category candidates. In Tej Prakash (supra) the alteration in procedure in effect led to elimination of selected candidates, still the Court refrained from finding fault with such an alteration, as it was done in public interest. In the present case, the relaxation afforded to the reserved category candidates has in no way eliminated the appellants from the selection process; rather a fair opportunity Page No. 29 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. has been provided to other candidates who can legitimately compete with the appellants herein. Point No.4: Challenge to G.O. Ms. No.71 dated 30.05.2014? 38. The appellants have also challenged G.O.Ms. 71, which was issued by the respondents pursuant to the decision of the Single Judge of the High Court. As already noted before, the Single Judge while declining the challenge to G.O.Ms. No. 252 and G.O.Ms. No. 25 had set aside the grading system adopted by the Government vide G.O.Ms. No. 252. The Single Judge observed that the grading system adopted in G.O.Ms. No. 252 lacks rationality as it places candidates with the difference of 1 to 9 percentage in the same basket. Accordingly, vide G.O.Ms.No. 71 the Government came up with the grading methodology as indicated supra in para No 10. The appellants have not only challenged the new grading system introduced by G.O. No. 71; but they have also challenged the weightage of marks of 40% earmarked for academic performance. It is their contention that the Government has blindly accepted the recommendation of Single Judge without application of mind. 39. As it is evident from the records, distribution of marks for academic performance and TET fixed by the respondents vide G.O. No. 252 continues to be the same even after issuing of G.O. No. 71. That is, for the post of secondary grade teachers weightage of marks obtained in H.Sc. examination, D.T.Ed./D.E.Ed and TET was 15 marks, 25 marks and 60 Page No. 30 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. marks respectively and it continues to be the same. Similarly, for the post of Graduate Assistants weightage of marks obtained in H.Sc. examination, Degree Examination, B.Ed and TET was 10 marks, 15 marks, 15 marks and 60 marks and it also continued to be the same. In such circumstances, we hold that the Madras High Court has correctly held that it is not open to the appellants to challenge the weightage of marks. The TET conducted on 17.08.2013 and 18.08.2013 was pursuant to the issuing of G.O.Ms.No.252 fixing the weightage for the marks in the basic qualification itself in which the appellants have participated. Thus, it is not open to the appellants to challenge the said procedure adopted by the respondents after writing the examination. 40. The second aspect of challenge relates to the grading system adopted by the respondents. The respondents have acted as per the directions of the Single Judge of the High Court. The Single Judge in his judgment dated 29.04.2014 while declaring the slab system irrational, suggested a scientific rational method for award of weightage marks with reference to actual marks secured by each candidate in H.Sc./D.T.Ed./D.E.Ed/B.Ed/TET for Secondary Grade Teachers/ Graduate Assistants as the case may be and accordingly make selections. This was accepted by the government in G.O.(Ms.) No.71 dated 30.05.2014 and the respondents have thus come up with the present awarding of weightage marks with reference to actual marks secured by each candidate which is more scientific and appropriate and as compared to Page No. 31 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. the previous grading system contained in G.O. No. 252 which had put candidates obtaining 1-9% marks on the same footing. 41. The appellants have maintained that while prescribing the marks for performance in Higher Secondary Examination, the respondents have failed to take into account different Education Boards (CBSE, ICSE, State Boards etc.) conducting Higher Secondary Examination and difference in their marks awarding patterns. As also, the appellants have alleged that respondents failed to consider different streams of education while formulating the grading pattern. It is submitted that unless and until the respondents take note of difference in marking scheme of Education boards, as also the marking scheme of different streams such as Arts, Science etc. a valid grading system cannot be formulated. Equivalence of academic qualifications is a matter for experts and courts normally do not interfere with the decisions of the Government based on the recommendations of the experts (vide University of Mysore v. CD Govinda Rao (1964) 4 SCR 575 and Mohd. Sujat Ali v. Union of India (1975) 3 SCC 76). We hold that it is the prerogative of State-Authorities to formulate a system whereby weightage marks is decided with reference to actual marks secured by each candidate. In the present case, as no arbitrariness is proved on the part of the respondents, in formulating the grading system we cannot interfere with the same. We cannot be expected to go into every minute technicalities of decision taken by the experts and perform the job of the respondent-State. Page No. 32 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Moreover, the High Court has also noted that submission of learned Advocate General that almost all the appellants have completed their High Secondary examination from the State Boards. 42. The contention that different Boards of Examination have different standards and the examiners who evaluate the scripts are in some places more liberal than others and that the candidates who acquired qualifications decades back had to suffer strict evaluation as compared to the candidates who have qualified in the recent past facing liberal evaluation criteria, are all hypothetical arguments without any pleading and supporting material disclosed in the Writ Petitions. As noted earlier, weightage of marks for academic performance and TET fixed vide G.O.(Ms.) No.252 dated 05.10.2012 continues to be the same even after issuing G.O.(Ms.)No.71 dated 30.05.2014. Having taken up the examination as per G.O.(Ms.) No.252, the appellants cannot challenge the award of weightage for the distribution of marks for academic performance with reference to actual marks secured by each candidate. The appellants are not justified in challenging every rational decision taken by the respondents to make the selection process more fair and reasonable merely because the outcome does not favour the limited individual interests of the appellants. 43. The Madras High Court rightly rejected the challenge to G.O.(Ms.) No.25 dated 06.02.2014 and G.O.(Ms.)No. 71 dated 30.05.2014, holding Page No. 33 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. that as per the NCTE Guidelines, the State Government has the power to grant relaxation on the marks obtained in the TET for the candidates belonging to reserved category and the same is affirmed. The Madurai Bench did not keep in view the NCTE Guidelines and the power of the State Government to grant relaxation in terms of their extant reservation policy and erred in quashing G.O.(Ms.) No.25 dated 06.02.2014 and hence the same is liable to be set aside. 44. The appeals filed by the State Government are, accordingly, allowed and the impugned judgment of the Madurai Bench is set aside. The impugned judgment of the Madras Bench of the High Court is affirmed and all the appeals preferred by the unsuccessful candidates are dismissed. ...……………………….J. [SHIVA KIRTI SINGH] .………………………..J. [R. BANUMATHI] New Delhi; November 9, 2016 Page No. 34 of 34



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TNTET : Tamil Nadu TET : Why TET Marks Weightage is Important, High Court of Madras

TNTET : Tamil Nadu TET : Why TET Marks Weightage is Important, High Court of Madras

Tamilnadu Govt adopted TET marks weightage as per NCTE Guidelines and High Court of Madras having no objection on it.

TET Marks ka weightage agar Selection Mein Nahin Diya Jata Hai to Fir NCTE Guidelines ko kaise adopt kiya jayega.
Kyun Candidate NCTE Guidelines ke anusaar Dobara Exam De Kar TET Marks Badane Ki Kosis Kare, Jab Uska Usko Koee fayda na Mile.

Isleeye NCTE ne 9b Mein Spasht Kiya Kee -
Selection Mein TET Marks Ka Weightage Liya Jaye.
 Aur Isko Allahabad High Court ne Maante Hue UP Govt ke 15th, 16th Amendment ko Radd Kiya, Aur 3 Judges ki Bench Ne Kaha ki - Selection Mein TET Marks Ki Weightage ko Ignore Nahin Kiya Jaaye.

Lekin UP Govt ke vidvaano ne is rule ko samjha nahin, Jabki Baki Rajyon Rajasthan, Gujarat, Tamilnadu etc. mein TET Marks ka weightage diyaa gaya.


UP  Ulta Pulta

  


This is the html version of the file http://judis.nic.in/judis_chennai/Judge_Result_Disp.asp?MyChk=46232.

1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29..04..2014 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Writ Petition Nos.5590, 4182, 4183, 4184, 7146, 7371, 7681, 7754, 7755, 7756, 7757, 5985, 8354, 10850, 2780, 2781, 2782, 5842, 5843, 5591, 6361, 6648, 7315, 7316, 7317, 7213, 7626, 7859, 5680, 9008, 10849 and 10843 of 2014 and connected MPs P.Jayabharathi ... Petitioner in W.P.No.5590 of 2014 -Versus- 1.State of Tamil Nadu, Rep. By its Secretary to Government, School Education (TRB) Department, Secretariat, Chennai 600 009. 2.The Chairman, Teachers Recruitment Board, Chennai 600 006. 3.The Director of School Education, Chennai 600 006. 4.The Director of Elementary Education, Chennai 600 006. ... Respondents in W.P.No.5590 of 2014 Prayer in W.P.No.5590 of 2014:- Petition filed under Article 226 of The Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the order passed by the 1st respondent in G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 as amended by G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014, insofar as the awarding of weightage mark in the slab system for the Teacher Eligibility Test qualification for the post of B.T. Assistant is concerned and to quash the same and direct the
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2 respondents to award mark for the Teacher Eligibility Test qualification on the basis of actual percentage of fraction of mark obtained by the petitioner and award the mark to the Teacher Eligibility Test accordingly and consider the petitioner for appointment to the post of B.T. Assistant (English). 1.S.Karthick 2.B.Vishalini ... Petitioner in W.P.No.5842 of 2014 -Versus- 1.State of Tamil Nadu, Rep. By its Secretary to Government, School Education (TRB) Department, Secretariat, Chennai 600 009. 2.The Chairman, Teachers Recruitment Board, Chennai 600 006. 3.The Director of School Education, Chennai 600 006. ... Respondents in W.P.No.5842 of 2014 Prayer in W.P.No.5842 of 2014:- Petition filed under Article 226 of The Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the order passed by the 1st respondent in G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014 and to quash the same, insofar as it denies the relaxation of 5% to the candidates who appeared in the Teacher Eligibility Test conducted by the 2nd respondent in the year 2012 is concerned, and direct the respondents to extend the benefit of 5% relaxation to the petitioner and consequently, issue Teacher Eligibility Test Certificate so as to enable them to get appointment to the post of B.T. Assistant in any one of the Government Schools. N.Kowsalya ... Petitioner in W.P.No.7681 of 2014 -Versus-
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3 1.The Secretary to Government, Education Department, Fort St. Geoge, Chennai 600 009. 2.The Chairman, Teacher's Recruitment Board, E.V.K. Building, College Road, Chennai 600 006. 3.The Member Secretary, Teacher's Recruitmetn Board, E.V.K. Building, College Road, Chennai 600 006. ... Respondents in W.P.No.7681 of 2014 Prayer in W.P.No.7681 of 2014:- Petition filed under Article 226 of The Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the order passed by the 1st respondent in G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014 and to quash the same and consequently, direct the respondents to appoint the petitioner on the basis of marks awarded at Tamil Nadu Teacher's Eligibility Test conducted by the 3rd respondent. V.Sridevi ... Petitioner in W.P.No.10849 of 2014 -Versus- 1.The State of Tamil Nadu, Rep. By its Secretary to Government, School Education Department, Fort St. George, Chennai 600 009. 2.The Teachers' Recruitment Board, Rep. By its Chairman, DPI Compound, College Road, Chennai 600 006. 3.The Director of School Education, DPI Compound, College Road, Chennai 600 006. ... Respondents in W.P.No.10849 of 2014
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4 Prayer in W.P.No.10849 of 2014:- Petition filed under Article 226 of The Constitution of India, praying for issuance of a Writ of Certiorari calling for the records pertaining to the order passed by the 1st respondent in G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014 and to quash the same. For Petitioner(s) : Mr.C.Selvaraj, senior counsel for M/s.C.S. Associates for petitioner(s) in W.P.Nos.5590, 5842, 5843 and 5591 of 2014 Mr.L.Mouli for Petitioner in W.P.No.6361 of 2014 Mr.S.Namonarayanan for petitioner(s) in W.P.Nos.4182, 4184 and 6648 of 2014 Mr.S.Kadarkarai for petitioner(s) in W.P.No.7146 of 2014 Mr.M.R.Jothimanian for petitioner(s) in W.P.No.7371of 2014 Mr.R.Karunagaran for petitioner(s) in W.P.No.7681 of 2014 Mr.T.K.S.Gandhi for petitioner(s) in W.P.No.7754, 7757, 7315 to 7317, 7213 of 2014 Mr.R.Bharath Kumar for petitioner(s) in W.P.No.5985 of 2014 Mr.G.Sankaran for petitioner(s) in W.P.No.8354of 2014 Mrs.Dakshayani Reddy for petitioner(s) in W.P.Nos.10850 and 10849 of 2014 Mr.S.Vijayan for petitioner(s) in W.P.Nos.2780 to 2782 of 2014 M/s.Sai Bharath and Ilan for Petitioner(s) in W.P.No.7626 of 2014
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5 Mr.S.Kasirajan for petitioner(s) in W.P.No.7859 of 2014 Mr.R.Kumaravel for petitioner(s) in W.P.No.5680 of 2014 Mr.D.Shivakumaran for petitioner(s) in W.P.No.9008 of 2014 Ms.D.Almas Banu for petitioner(s) in W.P.No.10843 of 2014 For Respondent(s) : Mr.AL.Somayaji , Advocate General Assisted by Mr.D.Krishnakumar, Special Government Pleader, R.Rajeswaran, Special Government Pleader and Mr.M.Dig Vijaya Pandian, Additional Government Pleader COMMON ORDER Since common issues are involved in all these writ petitions, they were heard together and they are disposed of by means of this common order. 2. The common facts involved in all these writ petitions are as follows: With a laudable object of providing free and compulsory education to all children of the age of six to fourteen years, the Parliament enacted “The Right of Children to Free and Compulsory Education Act, 2009” and the same was brought into force w.e.f 27.08.2009. Section 23 of the said Act stipulates the qualifications for appointment and terms and conditions of
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6 service of teachers. Sub Section (1) of Section 23 states that any person possessing such minimum qualifications, as laid down by an Academic Authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. 3. In pursuance of the said provision, the Central Government authorised the “National Council for Teacher Education” (hereinafter referred to as “NCTE”) as the Academic Authority empowering it to lay down the minimum qualifications for appointment as teacher. The NCTE, in turn, issued a notification (vide F.No.61-03/20/2010/NCTE (N&S), dated 23.08.2010) laying down the following minimum qualifications for a person to be eligible for appointment as a teacher in Class 1 to VIII. “Minimum Qualification: (i) Classes I - V: (a) Senior Secondary (or its equivalent) with at least 50% marks and 2- year Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002 OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary
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7 Education (B.El.Ed) OR Senior Secondary (or its equivalent) with at least 50 % marks and 2- year Diploma in Education (Special Education) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose. (ii) Classes VI-VIII (a) B.A./B.Sc. and 2 year Diploma in Elementary Education (by whatever name known) OR B.A./B.Sc. with at least 50% marks and 1 year Bachelor in Education (B.Ed) OR B.A./B.Sc. with at least 45% marks and 1-year Bachelor in Education (B.Ed.) in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B.El.Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A./B.Sc. Ed or B.A. Ed./B.Sc. Ed. OR
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8 B.A/B.Sc. with at least 50% marks and 1 year B.Ed (Special Education) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the purpose.” 4. As seen above, a pass in the Teacher Eligibility Test (hereinafter referred to as “TET”) to be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the said purpose is compulsory. 5. The NCTE thereafter issued guidelines by its proceedings in No.76- 4/2010/NCTE/Acad, dated 11.02.2011 for conducting TET. Para 9 of the said notification reads as follows: “Para 9.Qualifying marks: A person who scores 60% or more in the TET exam will be considered as TET pass. School managements (Government, local bodies, government aided and unaided) (a) may considered giving concessions to persons belonging to SC/ST, OBC, differently abled persons, etc., in accordance with their extant reservation policy; (b) should give weightage to the TET scores in the recruitment process; however, qualifying the
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9 TET would not confer a right on any person for recruitment/employment as it is only one of the eligibility criteria for appointment." 6. Thereafter, the Government of Tamil Nadu issued G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011 designating the Teachers Recruitment Board (TRB) as the Nodel agency for conducting TET and recruitment of teachers. 7. Subsequently, the Government of Tamil Nadu in letter No.2068/C2/2012-1, dated 04.02.2012, issued certain clarifications to G.O.Ms.No.181, dated 15.11.2011, regarding the conduct of TET. According to the said clarifications, there shall be two papers for the TET. Paper-I will be for a person who intends to be a teacher for Classes I to V which consists of 150 Multiple Choice Questions (MCQs). Paper-II will be for a person who intends to be a teacher for Classes VI to VIII which consists of 150 MCQs. This clarification is in tune with the NCTE norms. The percentage of marks required for a pass is 60%. 8. The NCTE amended the earlier notification by another notification in F.No.61-1/2011/NCTE (N&S), dated 29.07.2011. Para 1 of the said notification substituted para 1 of the earlier notification. As per the amended notification the minimum required qualification is as follows:
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10 “(I) For sub-para (i) of para 1 of the Principal Notification, the following shall be substituted, namely:-- Para 1. Minimum Qualification: (i) Classes I - V: (a) Senior Secondary (or its equivalent) with at least 50% marks and 2- year Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002 OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed) OR Senior Secondary (or its equivalent) with at least 50 % marks and 2- year Diploma in Education (Special Education) Graduation and two year Diploma in Elementary Education (by whatever name known) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.
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11 (II) For sub-para (ii) of para 1 of the Principal Notification, the following shall be substituted, namely:- (ii) Classes VI-VIII (a) Graduation and 2 year Diploma in Elementary Education (by whatever name known) OR Graduation with at least 50% marks and 1 year Bachelor in Education (B.Ed) OR Graduation with at least 45% marks and 1-year Bachelor in Education (B.Ed.) in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B.El.Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A./B.Sc. Ed or B.A. Ed./B.Sc. Ed. OR Graduation with at least 50% marks and 1 year B.Ed (Special Education) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the purpose.”
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12 III For para 3 of the Principal Notification the following shall be substituted, namely:- (i) Training to be undergone. - A person - (a) with Graduation with at least 50% marks and B.Ed. qualification or with at least 45% marks and 1-year Bachelor in Education (B.Ed) in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard, shall also be eligible for appointment to Class I to V upto 1st January, 2012, provided he/she undergoes, after appointment an NCTE recognised 6 months Special Programme in Elementary Education; (b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment an NCTE recognised 6-month Special Programme in Elementary Education. (ii) Reservation Policy: Relaxation upto 5% in the qualifying marks shall be allowed to the candidates belonging to reserved categories, such as SC/ST/OBC/PH." 9. In the above background, the TRB conducted, for the first time, TET for both the Papers I & II on 12.07.2012. Several lakhs of candidates participated. 60% marks was the minimum required mark for a pass in the TET as per the NCTE norms. When the results were published, it turned out
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13 that only 0.36% of the candidates had passed in both the Papers I & II. Therefore, in order to afford yet another opportunity for the failed candidates, the Government directed the TRB to conduct yet another TET before the end of October, 2012. This time, the duration of the examination was ordered to be increased from 1½ hours to 3 Hours - vide G.O.Ms.No.222, School Education Department, dated 24.08.2012. As per G.O.Ms.No.222, dated 24.08.2012, it was directed that only those candidates who had earlier failed alone would be permitted to participate in the TET, which was scheduled to be held on 03.10.2012. 10. At this juncture, a number of writ petitions [W.P.No.24507 of 2012 – Batch] were filed before this Court by the fresh candidates who had not earlier appeared in the TET. Their grievance was that they should also be permitted to participate in the TET. When the said batch of writ petitions came up for hearing before me, the Chairman, TRB submitted two affidavits stating that the examination which was scheduled to be held on 03.10.2012 would be postponed to 14.10.2012 and fresh candidates would also be permitted. 11. In the meanwhile, for the purpose of fixing the criteria for selection of candidates who have cleared the TET for appointment to the
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14 post of Secondary Grade Teachers and B.T. Assistants and other related issues, the Government constituted a Committee under the Chairmanship of the Hon'ble Minister for School Education, Sports and Youth Welfare with three other members namely, the Principal Secretary to Government, School Education Department, The Chairman, Teachers Recruitment Board and The Director of School Education (Vide G.O.(2D)No.36, School Education (Q) Department, dated 14.09.2012). 12. In the second affidavit filed in W.P.Nos.24507 of 2012 batch, the Chairman, TRB had stated that after the recommendation of the above constituted Committee, the Government would examine the matter in detail and would arrive at a criteria for selection of candidates for Secondary Grade Teachers and B.T. Assistants at the earliest. 13. In view of the said affidavit filed, this Court disposed of the writ petitions issuing certain directions including the following:- “10 (vii). So far as the candidates who possess the Teacher Eligibility Certificate are concerned, after receipt of the recommendations of the Committee constituted (vide G.O.(2D) No.36, School Education Department, dated 14.09.2012) selection and appointment shall be made as per the criteria to be fixed by the Committee.”
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15 14. The Committee unanimously recommended to the Government to adopt modalities by giving weightage of marks for selection and appointment of Secondary Grade Teachers and Graduate Assistants. Having examined the recommendations of the Committee, the Government issued G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 and prescribed the modalities of giving weightage of marks for selection and appointment of Secondary Grade Teachers and Graduate Assistants. 15. So based on the above norms and the criteria prescribed, the candidates who have cleared the TET in the second examination held on 14.10.2012 were all called for certificate verification, awarded weightage of marks, selected and appointed. Until then, there was no challenge made to G.O.Ms.No.252, dated 05.10.2012. 16. The TRB, for the third time, issued Notification/Advertisement for TET for Paper-I and Paper-II to be held on 17.08.2013 and 18.08.2013. This notification was issued on 22.05.2013. The petitioners in all these writ petitions participated either in Paper-I or in Paper-II or in both. In that examination held as per the Notification itself, the minimum percentage of marks required for pass was only 60% as per the norms prescribed by the NCTE and the Government of Tamil Nadu. The results were subsequently published.
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16 17. Thereafter, the Hon'ble Chief Minister of Tamil Nadu announced on the Floor of the Assembly that 5% relaxation will be given from the present pass mark of 60% for passing TET for the candidates belonging to the Scheduled Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslim), Most Backward Classes, De-notified Communities and persons with Disability. 18. In tune with the said announcement made, the Government issued G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014 relaxing 5% marks from the present pass mark of 60% for the candidates belonging to the above categories. 19. The Government Order also further directed that the said relaxation will be applicable for the TET-2013 held on 17.08.2013 and 18.08.2013 . For better understanding let me extract paragraph 3 of the said G.O. which reads as follows: "3. In continuation of the announcement made by the Hon'ble Chief Minister, the Government orders as follows: (a) relaxing 5% marks from the present pass mark of 60% and fix the pass mark at 55% for candidates belonging to Scheduled Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslim), Most Backward Classes, De- notified Communities and persons with disability (PWD) as
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17 given below. The Candidates are required to obtain the following minimum marks in Paper I for Secondary Grade Teachers and Paper II for Graduate Assistants:- Category Maximum Marks Minimum Marks (%) to be obtained in TNTET Paper - I Paper - II General 150 60% or 90 marks 60% or 90 marks SC, ST, BC, BC(M), MBC, DNC and persons with Disability (PWD) 150 55% or 82.5 marks rounded off to 82 marks 55% or 82.5 marks rounded off to 82 marks (b) Relaxing 5% marks from the 60% marks prescribed for clearing of the Tamil Nadu Teacher Eligibility Test, 2013 held on 17.08.2013 and 18.08.2013 for Schedule Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslims), Most Backward Classes, De-notified Communities and persons with Disability (PWD) and fixed at 55% or 82 marks. (c) For all future Teacher Eligibility Tests, to fix the minimum marks for candidates belonging to General Categories at 90 marks (60% of 150) and for candidates belonging to Schedule Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslims), Most Backward Classes, De-notified Communities and persons with Disability (PWD) at 82 marks (55% of 150)." 20. Thereafter, the Government issued another Government Order in G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014,
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18 thereby partially modifying the Government Order in G.O.Ms.No.252, dated 05.10.2012 (this is in respect of weightage marks for selection). Paragraphs 3 and 4 of the said G.O. reads as follows: "3. Consequent to the orders issued in G.O. third read above, in partial modification of the orders issued in the G.O. first read above , the weightage of marks for the Tamil Nadu Teacher Eligibility Test for Secondary Grade Teachers and Graduate Assistants shall be as indicated below:- Examination passed Weightage of Marks 90% and above 80% and above but below 90% 70% and above but below 80% 60% and above but below 70% 55% and above but below 60% TNTET. 60 60 54 48 42 36 4. The Chairman, Teachers Recruitment Board is directed to take note of this Government Order for finalizing selection list of the Tamil Nadu Teacher Eligibility Test 2013 held on 17.08.2013 and 18.08.2013 and for all future Tamil Nadu Teacher Eligibility Tests with respect to candidates belonging to Scheduled Castes, Schedules Tribes, Backward Classes, Backward Classes (Muslims), Most Backward Classes, Denotified Communities and Persons with Disability (PWD). 21. In the above factual background, now these writ petitions have
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19 been filed by the candidates who have appeared for either Paper-I or Paper-II or in both the papers in the TET held on 17.08.2013 and 18.08.2013. (i) In some of the writ petitions, the Government Order in G.O.Ms.No.25, dated 06.02.2014 giving relaxation of 5% of marks in the TET to specific class of persons is under challenge. (ii) In some of the other writ petitions, challenge is to the Government Order in G.O.Ms.No.29, dated 14.02.2014, wherein the candidates have questioned the award of weightage of marks in the slab system and they have sought for a direction to the respondents to take into account the actual percentage of marks secured by the candidates. (iii) In few other writ petitions, the petitioners have challenged the retrospective application of the Government Order in G.O.Ms.No.29, dated 14.02.2014 as well as the Government Order in G.O.Ms.No.25, dated 06.02.2014 to the TET examination held on 17.08.2013 and 18.08.2013. (iv) In few other writ petitions, the candidates have prayed that G.O.Ms.No.25, dated 06.02.2014 and G.O.Ms.No.29, dated 14.02.2014 should be retrospectively extended to the earlier examinations held in the year 2012 as well. (v) In some other writ petitions both G.O.Ms.No.25 and G.O.Ms.No.29 are challenged seeking a consequential direction for awarding of weightage marks as per G.O.Ms.No.252. 22. Now, let me take up these challenges one after the other.
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20 Challenge to G.O.Ms.No.25, dated 06.02.2014 23. The common grounds in the writ petitions concerned would be as follows:- (i) The impugned Government Order in G.O.Ms.No.25, dated 06.02.2014 which was issued after the entire selection process was over for the examination conducted in August, 2013, would amount to changing the rules of the game after the game is over. (ii) By reducing the pass percentage to 55%, the respondents have diluted the pass percentage and have made more candidates eligible along with the petitioners which has adversely affected the rights of the petitioners. (iii) The retrospective operation under the impugned G.O.Ms.No.25, dated 06.02.2014 to TET examinations held in August, 2013 materially affects the vested right of the petitioners for selection. (iv) The impugned Government Order suffers from total non-application of mind in as much as the
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21 relaxation is not on the ground that there are no eligible candidates. (v) The impugned Government Order is bereft of any reasoning for the issuance of the same and thus the said G.O. is highly unreasonable. (vi) The impugned Government Order is against the provisions of the Right to Education Act and NCTE Notification which enables the Government to only reduce the pass marks, only, if there is any hardship or that there are no enough number of candidates. 24. In the common counter filed by the Government, it is, inter alia, stated as follows: (i) There were several representations from different quarters seeking concessions to the reserved categories. The Government after detailed examination of the said requests decided to grant such concessions to the said category of persons in the TET exams conducted in the year 2013 and to all the future TET exams and accordingly passed the Government Order in G.O.Ms.No.25. The Government has gone one step further and allowed 5 % relaxation
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22 from the existing 60 % for determining eligibility in the TET for candidates belonging to Scheduled Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslim), Most Backward Classes, De-notified Communities (DNC) and Persons with Disability (PWD). (ii) Giving concession is the policy of the Government and it is within its discretion and so, the Courts cannot either interfere with such policy matters nor could it direct the State Government not to give such concession. (iii) In respect of the candidates who have already appeared in the TET held in the year 2013 the process of selection is under way and it is yet to be completed. Therefore, the said order has been made applicable to the candidates who have appeared for TET held in the year 2013. 25. I have meticulously considered the above rival contentions. In none of the writ petitions, the power of the State Government to give
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23 relaxation for the benefit of reserved categories in the matter of percentage of marks for a pass in the TET has been questioned. The foremost ground is that the Government has issued the impugned Government Order in total non-application of mind. As has been stated in the common counter affidavit filed by the respondents, the Government has considered the representations from various quarters seeking relaxation of 5% of pass mark for specified and under privileged communities and having regard to the same, the Government has taken a policy decision to relax the same. Therefore, it cannot be stated that the Government has passed the impugned order in total non-application of mind. 26. Nextly, it is contended by the petitioners that such concessions could be granted only if there is no required number of candidates eligible for appointment. In my considered opinion, this contention is totally baseless as TET is not a competitive examination but it is only a qualifying examination. If the candidates have once passed the said examination, the pass certificate will be valid for seven years and there is no need for them to write the examination every time. At the same time, there is also no restriction for the passed candidates to re-appear to enhance the marks. Thus, it should be understood that TET is only a qualifying examination to qualify persons for appointment as teachers. Therefore, it is not tenable to state that if only there are no sufficient number of candidates available in
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24 the market who have passed the TET for appointment, such relaxation could be given. Therefore, this ground is rejected. 27. Yet another ground raised, upon which much focus is made, is that the rules of the game cannot be changed once the game has started. In this case, according to the petitioners the TET Examinations – 2013 were held on 17th and 18th of August, 2013 and as per the prospectus issued, the minimum required marks for a pass was 60%. Based on the said prescription, the results were published and the successful candidates were also called for certificate verification and only after that, the impugned Government Order in G.O.Ms.No.25, dated 06.02.2014 has been issued. The grievance of the petitioners is that since the relaxation of 5% of marks has been given to candidates who have appeared in the already concluded examination, it will materially affect the chance of the candidates who have already passed and secured more than 60% of marks, while they are considered for appointment. This argument, in my considered opinion, though attractive, does not persuade me at all. If it is a competitive examination, I may find some justification in the said contention that the rules of the game cannot be changed subsequently. But as I have already pointed out, it is only a qualifying examination. 28. The basic difference between a competitive examination and a
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25 qualifying examination is that in a competitive examination, success or failure of one candidate will have an impact on the other candidates because it is a competition between the them. But, in a qualifying examination, success or failure of one candidate will have no bearing on the other. Both the candidates appear for examination only to qualify themselves so as to make themselves eligible for appointment as teachers in future. Thus, the principles applicable to a competitive examination cannot be simply imported to a qualifying examination in a mechanical fashion. 29. The learned counsel Mrs.Dakshayani Reddy appearing the petitioner in W.P.No.10849 of 2014 would make reliance on the judgements of the Hon'ble Supreme Court in K.Manjusree v. State of Andhra Pradesh, (2008) 3 SCC 512 and Tamil Nadu Computer Science, B.Ed., Graduate Teachers Welfare Society v. Higher Secondary School Computer Technical Assistant and others [Civil Appeal No.4187 of 2009 arising out of SLP (C) No.25097 of 2008 dated 09.07.2009]. 30. A close reading of the above judgements would go to show that the Hon'ble Supreme Court, in those judgements, has reiterated the principle that the rules of the game cannot be changed after the game is over. But all those cases pertain to competitive examinations and the
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26 ultimate selection for appointment. In a qualifying examination, if the change of the rule has materially affected the chances of anybody in getting qualified, then the said principle can be applied even to a qualifying examination. But, if the rules are changed only for the benefit of the candidates and not to the detriment of any single candidate, then the said principle that the rules of the game cannot be changed after the game is over cannot be made applicable. In this case, the relaxation of 5% of marks given to certain reserved categories has not affected the chance of any candidate in getting qualified. Therefore, the contention of the petitioners in this regard is liable to be rejected and accordingly rejected. 31. Nextly, it is contended that because retrospective relaxation is given to the already concluded examinations, more number of candidates will get qualified and such qualified candidates who have secured less than 60% of marks will compete with the petitioners in the matter of appointment and thus the impugned Government Order materially affects the accrued rights of the petitioners. I find no force in this argument for more than one reason. First of all, as has been very clearly stated in the NCTE regulations as well as in the TET Notification, a mere pass in the TET does not confer any right for appointment as a teacher. As I have repeatedly stated, it is only a qualification for appointment as a teacher. In the additional common counter affidavit filed by the Government (dated
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27 23.04.2014) it is stated as follows: “Pursuant to the notification issued by the NCTE, the State Government framed the guidelines for the Teacher Eligibility Test. The State Government is yet to issue the notification for recruitment of Secondary Grade Teachers and Graduate Assistants for the present academic year.” 32. Of course, it is true that the candidates who have already secured 60% marks and above have already been called for certificate verification. But such exercise shall not confer any right on them that they shall be appointed as teachers. Therefore, I hold that the publication of results of the TET conducted in August 2013 has not conferred any right of employment as against existing vacancies on the candidates who have secured 60% of marks and above. Thus there is no vested right as claimed by the petitioners so as to say that they have been affected by G.O.Ms.No.25, dated 06.02.2014. Further, when the Government has taken a policy decision to reduce the percentage of marks for the benefit of reserved categories, for a pass and when the power of the Government to do so is not challenged, I find no substance in the challenge. Therefore, this ground is also rejected. 33. For the foregoing discussions , I hold that G.O.Ms.No.25 dated 06.02.2014 is valid and the challenge made to the same has to
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28 necessarily fail. Request for retrospective application of G.O.Ms.No.25, dated 06.02.2014 to the TET held in the year 2012:- 34. In many of these writ petitions, the petitioners who have appeared in the TET in the year 2012 and who could not secure 60% of marks are before this Court challenging G.O.Ms.No.25, dated 06.02.2014 in so far as it gives retrospective effect of relaxation of 5% of marks only to the TET held in August, 2013. According to the petitioners, such retrospective effect should have been given to the examinations held in the year 2012 also. The primary contention of the petitioners is that denial of giving retrospective effect to the examinations held in 2012, when such retrospective effect has been given to the examinations held in 2013, amounts to discrimination which violates Article 14 of the Constitution of India. 35. In this regard, in the common counter filed by the respondents, it is stated in paragraph 18 and 19 as follows: "It is submitted that the petitioner cannot seek to extend the concession to candidates who appeared in the
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29 TET exams in the year 2012. It will create chaos and confusion and will set at naught the settled things. It will affect the persons who have already been selected and have been declared as eligible to be appointed as Teacher in the TET exam in the year 2012 and who were appointed following the extent reservation policy of the Government and are working in various places. It will collapse and undo the entire things already done. Petitioner and persons who failed in the TET exams in the year 2012 had an opportunity to appear in the TET exams conducted in the year 2013 and many of them have appeared and secured pass marks. Therefore, the petitioner is not a similarly placed person like the candidates to whom the benefits have been extended. The candidates who appeared in the TET exam conducted in the year 2013 are yet to be selected and appointed whereas the candidates selected in the TET exams conducted in the year 2012 have already been appointed. It is submitted that the petitioner at no stretch of imagination can claim to be a similarly placed person. 19. It is submitted that all the averments made in the affidavit by the petitioner are denied as untenable. The crux of the contention of the petitioner is that the Government before passing the impugned Order, has not taken into account the plight of the candidates who appeared in the TET exams in the year 2012 and that Government should have extended the concessions to the candidates who have appeared in the year 2012 also. Once the Government has decided to give the concession to persons who wrote TET exams in the year 2013 also it
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30 should have been given to all the persons who wrote the TET exams since its inception as they they are similarly placed and therefore the action of the Government is violating of Articles 14 and 16 of the Constitution of India. The contention of the petitioner is baseless as with respect to the candidates who appeared in the two Teacher Eligibility Tests conducted in 2012 the entire process of selection and appointment have been completed and the candidates have already serve more than a year in Government Schools. However, with respect to the candidates who have appeared in the Teacher Eligibility Test, 2013 the process of selection is under way and it yet to be completed. Hence the order stated to be impugned has been made application to the candidates who appeared in the Teacher Eligibility Test, 2013. Hence the said claim of the petitioner is misconceived and is not tenable and does not hold any water in the eye of law." 36. As has been rightly contended by the TRB, so far as the TET Examinations held in the year 2012 are concerned, after publication of the results much water has flown. The candidates who passed in that examinations have already been selected and appointed as teachers. Further, they have almost put in more than one year of service in the Government schools. If retrospective effect is given to impugned G.O. relaxing 5% of pass marks to the examination held in the year 2012, then the candidates who get the benefit of such relaxation will have to be appointed. In such an event, the appointments already made will have to be
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31 disturbed, because such appointments are to be in tune with the policy of reservation as well as the weightatge marks. This would only create chaos and confusion. This can be illustrated in the following manner: “A Scheduled Caste candidate who had secured 60% of marks in the TET Paper-II in 2012 had already been appointed based on the weightage of marks obtained in the Higher Secondary Course, Degree Course, B.Ed Degree Course and in the TET. There is a candidate who had secured 58% of marks belonging to Scheduled Caste and failed. As contended by the petitioners, if the retrospective operation has to be given to the relaxation, then the said candidate had to be declared as passed. Now, in the process of selection, if it is found that he had secured more total weightage marks then the candidate who had already been appointed, then the candidate who had already been appointed has to be disturbed and this candidate has to be appointed based on the total weightage marks.” 37. Thus, the above illustration amply demonstrates that giving retrospective effect to relaxation for the TET held in the year 2012 will only result in complete chaos and the same will materially affect the candidates who have already been appointed. It is because of these reasons, as has been contended by the learned Advocate General, the Government has not
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32 extended the benefit to the candidates who had appeared in the TET held in the year 2012. Thus, I find that there is no discrimination. Above all, the candidates who have been already appointed are not parties to these writ petitions. 38. So far as the TET Examinations held in August, 2013 are concerned, no candidate has been appointed based on the same so far. But the candidates who have already been declared as passed based on 60% of marks and above are waiting for the selection process. As I have already extracted, in the common counter, the Government has stated that the process of selection has not yet commenced for the current year. I have already held that giving retrospective effect to relaxation to the examination held in August, 2013, will not in any manner affect the interest of those candidates who had secured 60% of marks and above. In view of this factual background, the candidates who had appeared and failed in the TET Examinations held in the year 2012 cannot have any grievance as they cannot be equated with the candidates who have appeared in the 2013 examinations. 39. In view of the foregoing discussions, I hold that G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014 cannot be extended retrospectively to the TET examinations held in the year 2012.
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33 Challenge to G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 as amended by G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014 40. As we have already seen, after having examined the recommendations of the Committee, the Government issued G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 directing the TRB prescribing the modalities by giving weightage of marks for selection and appointment of Secondary Grade Teachers and Graduate Assistants from out of the candidates who have passed the TET. In brief, the modalities are as follows:- (i) Selection for both Secondary Grade Teachers and Graduate Assistants shall be on the basis of the weightage marks. (ii) For Secondary Grade Teachers, weightage marks shall be given for the academic qualification viz., Higher Secondary Examination, D.T.Ed., or D.E.Ed., Examination and TET Examination. (iii) For Graduate Assistants , weightage marks shall be given for the academic qualification viz., Higher Secondary Examination, Degree Examination, B.Ed., Examination and TET Examination. (iv) For both Secondary Grade Teachers and Graduate Assistants the total weightage marks shall be 100.
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34 (v) For Secondary Grade Teachers, out of 100 weightage marks, 15 shall be for Higher Secondary Exam, 25 for D.T.Ed., or D.E.Ed., Exam and 60 for TET. (vi) For Graduate Assistants, out of 100 weightage marks, 10 shall be for Higher Secondary Exam, 15 for Degree Exam, 15 for B.Ed., Exam, and 60 for TET. (vii) The weightage marks shall be awarded following the “Grading System”as detailed in para 7 of G.O.Ms.No.252 dated 05.10.2012 as amended by G.O.Ms.No.29 dated 14.02.2014. 41. The petitioners are not aggrieved by selection based on weightage marks as detailed in sub paras (i) to (vi) above. They are aggrieved by the Grading System adopted [vide sub para (vii) above] in the Government Orders. 42. Paragraph 7 of the Government is challenged in W.P.No.7146 of 2014. In some of the writ petitions, the modalities prescribed for awarding of weightage marks for TNTET alone is challenged. In few other writ petitions, amendment made to G.O.Ms.No.252, dated 05.10.2012 by means of Order in G.O.Ms.No.29, dated 14.02.2014 is also challenged. Thus, in all, paragraph 7 of G.O.Ms.No.252, dated 05.10.2012 as amended by G.O.Ms.No.29 dated 14.02.2014 prescribing the “Grading System” for
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35 awarding weightage marks is under challenge in these writ petitions. 43.1 Now, let us have a look into the modalities prescribed in G.O.Ms.No.252, dated 05.10.2012. Para 7 of the Government Order reads as follows:- “7. Tamil Nadu Teacher Eligibility Test Weightage for Secondary Grade Teachers: (a) There shall be 100 marks in total as full marks. (b) The computation of 100 marks will be in the following manner (i) Higher Secondary Exam : 15 marks (ii) D.T.Ed., / D.E.Ed., Exam : 25 marks (iii) Teacher Eligibility Test : 60 marks (c) Marks shall be given for item (i), (ii) and (iii) of clause (b), in the manner mentioned hereunder (i) For Higher Secondary Exam (12th Standard) Examination passed Weightage of Marks 90% and above 80% and above but below 90% 70% and above but below 80% 60% and above but below 70% 50% and above but below 60% Below 50% 12th Std. 15 15 12 9 6 3 0 (ii) For DTEd/DEEd.
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36 Examination passed Weightage of Marks 70% and above 50% and above but below 70% DTEd/DEEd 25 25 20 (iii) For TNTET Examinat ion passed Weightage of Marks 90% and above 80% and above but below 90% 70% and above but below 80% 60% and above but below 70% TNTET 60 60 54 48 42 Tamil Nadu Teacher Eligibility Test Weightage for Graduate Assistants: (a) There shall be 100 marks in total as full marks. (b) The computation of 100 marks will be in the following manner: (i) Higher Secondary Exam : 10 marks (ii) Degree Exam : 15 marks (iii) B.Ed. Exam : 15 marks (iv) Teacher Eligibility Test : 60 marks (c) Marks shall be given for item (i), (ii), (iii) and (iv) of clause (b), in the manner mentioned hereunder: (i) For Higher Secondary Exam (12th Standard)
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37 Examination passed Weightage of Marks 90% and above 80% and above but below 90% 70% and above but below 80% 60% and above but below 70% 50% and above but below 60% Below 50% 12th Std. 10 10 8 6 4 2 0 (ii) For Degree and B.Ed. Examination passed Weightage of Marks 70% and above 50% and above but below 70% Below 50% Degree 15 15 12 10 B.Ed. 15 15 12 - (iii) For TNTET Examin ation passed Weightage of Marks 90% and above 80% and above but below 90% 70% and above but below 80% 60% and above but below 70% TNTET 60 60 54 48 42 After computation of marks, based on the above selection criteria, if more than one candidate have the same mark, then preference in selection will be based on the date of birth (the older person will be given priority)" 43.2. Para 3 of G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014 reads as follows:- "3. Consequent to the orders issued in G.O. third read above, in partial modification of the orders issued in the G.O. first read above , the
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38 weightage of marks for the Tamil Nadu Teacher Eligibility Test for Secondary Grade Teachers and Graduate Assistants shall be as indicated below:- Examination passed Weightage of Marks 90% and above 80% and above but below 90% 70% and above but below 80% 60% and above but below 70% 55% and above but below 60% TNTET. 60 60 54 48 42 36 44. As I have already stated, the petitioners are aggrieved by the above modality viz., awarding of weightage marks by grading system. According to them, the grading system [slab system] adopted in G.O.Ms.No.252, dated 05.10.2012 as amended in G.O.Ms.No.29, dated 14.02.2014 is unconstitutional. 45. The common grounds raised in all these writ petitions can be summarised as follows: (i) The impugned Government Order treats more meritorious candidates on par with less meritorious candidates, in as much as, all the candidates in one slab are placed together and awarded equal marks and thus, less meritorious candidates get priority over the more meritorious candidates like the petitioners.
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39 (ii) The impugned Government Order defeats the very purpose of TET Examination in as much as the raw marks of the candidates are given a go-by and the individuals who have got different marks are grouped together and treated as equals. (iii) The impugned Government Order is arbitrary in as much as it ignores the fact that every mark in the TET is obtained by the candidates after hard preparation for the said examination. By placing several individuals who got different marks in the same slab, the merit and ability of the candidates in the examination is given a go-by. (iv) Though the object of The Right of Children to Free and Compulsory Education Act, 2009 is to ensure merit so that the students are taught by meritorious teachers, by selecting the candidates following the slab system under the impugned Government Order, the merit has been diluted. This will amount to diluting of the very object of the Act.
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40 (v) Paragraph 7 of G.O.Ms.No.252, dated 05.10.2012 offends Article 14 and Article 16 of the Constitution of India. 46. In the counter affidavits filed by the Government, inter alia it is stated: (i) That in order to provide quality education to the children in the State of Tamil Nadu and considering the need to fill up the vacancies for the post of Teachers, the committee in its meeting held on 14.09.2012 and 24.09.2012 took into consideration the selection methodology followed by the Government of Andhra Pradesh and West Bengal and arrived at the criteria of weightage of marks and recommended the same to the Government. The Government of Andhra Pradesh followed a system by which 20% weightage is given to Andhra Pradesh Teacher Eligibility Test (APTET) and 80% weightage for written test in Teachers Recruitment Test (TRT) for drawing up selection list of Teachers to be recruited in Government service. (ii) The State of West Bengal has followed the
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41 system of giving weightage for academic qualification starting from Madhyamik pass, Higher Secondary pass, Teacher Training, TET and interview. (iii) Considering the methodologies adopted by the above said two States, the Committee recommended to the Government to adopt the modalities by giving weightage of marks for their academic qualification in XII Standard,D.T.Ed.,/D.E.Ed., Degree, and B.Ed., along with TET for selection and appointment of Secondary Grade Teachers and Graduate Assistants respectively. The Government after examining the recommendations of the committee issued orders in G.O.Ms.252, School Education Department dated 05.10.2012. The Government had, in fact, carefully considered the system of assigning weightage for selecting candidates for appointment in Government service from among the candidates who have passed the Teacher Eligibility Test. In the interest of selecting the best and most meritorious candidates, the 100 marks were distributed between TET marks, degree marks, B.Ed. Marks and Higher Secondary marks. In the case of Graduate Assistants, 100 marks is computed as
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42 60 marks for TET, 15 marks each for degree and B.Ed., and 10 marks for Higher Secondary. The marks so computed were further distributed by assigning weightage on the slab fixed for the respective categories viz., TET, Degree, B.Ed., and Higher Secondary marks. By allotting 60 marks out of the 100 marks for TET, it is ensured that the candidates who have obtained higher marks in TET will stand a better chance of getting selected in Government service. (iv) In respect of G.O.Ms.No.29, it is stated in the counter that consequent upon the orders issued in G.O.Ms.No.25 dated 06.02.2014 the weightage of marks for TET, Secondary Grade Teachers and Graduate Assistants was ordered in G.O.Ms.No.29, dated 14.02.2014 providing for weightage of marks for even those candidates belonging to the specified reserved cagegories who secured 55% and above but below 60% in the Teacher Eligibility Test Examination held in the year 2013 and all future TET Examinations. It is also contended that there is no violation of either Articles 14 and 16 of the Constitution of India.
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43 47. The learned senior counsel Mr.C.Selvaraj, leading the team of lawyers appearing for the petitioners, would submit that when the actual marks obtained by the candidates are reduced into percentage, that by itself will reflect the mertis of the candidates and there is no need for the Government to adopt the slab system. The learned senior counsel would further submit that by adopting the slab system, the candidates who have secured higher marks have been discriminated as they have been treated on par with the candidates who are less meritorious. 48. In order to demonstrate the above anomaly, the learned senior counsel would refer to the marks secured by the petitioner in W.P.No.5590 of 2014 in the TET. She has secured 104 marks out of 150 marks in the TET which is equivalent to 69.33%. And as per the slab system she will get only 42 weightage marks for TET. The learned senior counsel would further submit that a candidate who had secured 105 marks in the TET [70%] will get 48 weightage marks as per the slab system. Similarly a candidate who has secured only 90 marks (60%) will get 42 weightage marks as per the slab system. For easy understanding let us tabulate the same as follows:- Sl.No. Marks secured in TET (out of 150) Marks in Per Centage (%) Weightage marks as per Slab System
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44 1 105 70.00 % 48 2 104 69.33 % 42 3 90 60.00 % 42 49. The learned senior counsel would point out, as illustrated above, the writ petitioner in W.P.No.5590 of 2014 who has secured 104 marks in the TET is equated to the candidate who has secured hardly 90 marks. Thus, according to him, the two unequals are treated as though they are equals which offends Article 14 as well as Article 16 of The Constitution of India. Similarly, he would point out that the said writ petitioner who had secured 104 marks gets only 42 weightage marks as per the grading system; whereas the candidate who has secured 105 marks gets 48 weightage marks as per the grading system, thus, giving a vast disproportionate variation. Here, the writ petitioner's percentage of mark is 69.33%; whereas the other candidate who has secured 105 marks would get 70.00%. The difference is hardly 0.67%. But, the difference between the petitioner and the other candidate as per the grading is 6-weightage marks. Thus, according to the learned senior counsel, the petitioner with 104 marks and the other candidate with 105 marks, who are more or less equal, are treated unequally and thus, it again goes to demonstrate that the system adopted under the impugned Government Order violates Articles 14 and 16(1) of the Constitution of India. The learned counsel would further submit that there is no scientific rationale behind the grading system
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45 adopted. Instead, according to him, the raw marks of the candidates should have been taken as the basis for selection. 50. Per contra, the learned Advocate General took much pains in an attempt to demonstrate that there is no violation of either Article 14 or Article 16(12) of the Constitution of India. According to him, grading of marks is a well accepted system and the same has been adopted in various institutions. He would further submit that such system has been adopted by the State of West Bengal and State of Andhra Pradesh. Only taking clue from the same, the committee adopted this method of grading and based on the said recommendation of the committee, the Government of Tamil Nadu has issued the impugned Government Order. The learned Advocate General would further submit that the grading system has been affirmed by a Division Bench of this Court in P.Arunkumar v. State of Tamil Nadu, 2007 Writ LR 965. The learned Advocate General would contend that it may be true that some other method may be suggested to be a more viable method, but, on that score, the present method prescribed in the impugned Government Order cannot be found fault with. If there are any anomalies noted in course of implementation of the system, it will be, in due course, rectified for the future selection process. He would further submit that unless it is so established to the satisfaction of this court, that the present grading system materially offends Article 14 and 16(1) of The Constitution
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46 of India, it is not at all possible to interfere with the same on the ground that there are other better methods available. He would further submit that since prescribing the method is a policy decision of the Government, this court should not interfere with the same. 51. I have carefully considered the said submissions. At the out set, we have to make one thing clear, i.e., the raw marks obtained by the candidates in the qualifying examinations such as Higher Secondary, Degree, B.Ed., D.T.Ed., / D.E.Ed., and TET cannot be straight away clubbed and selection made on the basis of the said raw marks because, different weightage marks are given for these qualifying examinations and TET respectively. This is a policy decision of the Government. Therefore, for awarding weightage marks as per the ratio prescribed, some system/method which will scrupulously weigh the inter se merits of the candidates, should be adopted. According to the Government, as per the Government Order, the grading system has been adopted as it is very reasonable. 52. Before proceeding further, let us have a look into the various systems available such as, moderation, scaling, grading, etc. to have a clear understanding as to whether the system prescribed in the impugned Government Order is in tune with Article 14 and 16 of The Constitution of
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47 India. 53. The learned counsel, on either side, placed reliance on the judgement of the Hon'ble Supreme Court in Sanjay Singh and another v. U.P. Public Service Commission, Allahabad and another [AIR 2007 SC 950]. In that case, the Hon'ble Supreme Court was mainly concerned with the scaling system adopted by the U.P. Public Service Commission. While explaining as to what do we mean by scaling and moderation, in para 23 of the judgement, the Hon'ble Supreme Court has very elaborately dealt with the same in the following manner:- “23. When a large number of candidates appear for an examination, it is necessary to have uniformity and consistency in valuation of the answer- scripts. Where the number of candidates taking the examination are limited and only one examiner (preferably the paper-setter himself) evaluates the answer-scripts, it is to be assumed that there will be uniformity in the valuation. But where a large number of candidates take the examination, it will not be possible to get all the answer-scripts evaluated by the same examiner. It, therefore, becomes necessary to distribute the answer- scripts among several examiners for valuation with the
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48 paper-setter (or other senior person) acting as the Head Examiner. When more than one examiner evaluate the answer-scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him to the answer- scripts allotted to him for valuation. Each examiner will apply his own yardstick to assess the answer-scripts. Inevitably therefore, even when experienced examiners receive equal batches of answer scripts, there is difference in average marks and the range of marks awarded, thereby affecting the merit of individual candidates. This apart, there is 'Hawk- Dove' effect. Some examiners are liberal in valuation and tend to award more marks. Some examiners are strict and tend to give less marks. Some may be moderate and balanced in awarding marks. Even among those who are liberal or those who are strict, there may be variance in the degree of strictness or liberality. This means that if the same answer-script is given to different examiners, there is all likelihood of different marks being assigned. If a very well written answer- script goes to a strict examiner and a mediocre answer- script goes to a liberal examiner, the mediocre answer-
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49 script may be awarded more marks than the excellent answer-script. In other words, there is 'reduced valuation' by a strict examiner and 'enhanced valuation' by a liberal examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'. Therefore, there is a need to evolve a procedure to ensure uniformity inter se the Examiners so that the effect of 'examiner subjectivity' or 'examiner variability' is minimised. The procedure adopted to reduce examiner subjectivity or variability is known as moderation.” 54. In paragraph 24 of the above said judgement, the Hon'ble Supreme Court explains as to what is scaling which reads as follows:- “24. In the Judicial Service Examination, the candidates were required to take the examination in respect of all the five subjects and the candidates did not have any option in regard to the subjects. In such a situation, moderation appears to be an ideal solution. But there are examinations which have a competitive situation where candidates have the option of selecting one or few among a variety of heterogenous subjects and the number of students taking different options also vary and it becomes necessary to prepare a common merit list in respect of such candidates. Let us assume that some candidates take Mathematics as an optional
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50 subject and some take English as the optional subject. It is well recognised that marks of 70 out of 100 in Mathematics do not mean the same thing as 70 out of 100 in English. In English 70 out of 100 may indicate an outstanding student whereas in Mathematics, 70 out of 100 may merely indicate an average student. Some optional subjects may be very easy, when compared to others, resulting in wide disparity in the marks secured by equally capable students. In such a situation, candidates who have opted for the easier subjects may steal an advantage over those who opted for difficult subjects. There is another possibility. The paper-setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared to some paper-setters in other subjects who set tougher questions which are difficult to answer. This may happen when for example, in Civil Service Examination, where Physics and Chemistry are optional papers, Examiner ‘A’ sets a paper in Physics appropriate to degree level and Examiner ‘B’ sets a paper in Chemistry appropriate for matriculate level. In view of these peculiarities, there is a need to bring the assessment or valuation to a common scale so that the inter se merit of candidates who have opted for different subjects, can be ascertained. The moderation procedure referred to in the earlier para will solve only the problem of examiner variability, where the examiners are many, but valuation of answer-scripts is in respect of a single subject. Moderation is no answer where the problem is to find inter se merit across several subjects, that is,
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51 where candidates take examination in different subjects. To solve the problem of inter se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling places the scores from different tests or test forms on to a common scale. There are different methods of statistical scoring. Standard score method, linear standard score method, normalised equipercentile method are some of the recognised methods for scaling.” 55. In para 25 of the judgement, inter alia, the Hon'ble Supreme Court has held as follows:- “25. ... ... ... ... Scaling is the process which brings the mark awarded by Examiner 'A' in regard to Geometry scale and the mark awarded by Examiner 'B' in regard to History scale, to a common scale. Scaling is the exercise of putting the marks which are the results of different scales adopted in different subjects by different examiners into a common scale so as to permit comparison of inter se merit. ” 56. As we have seen, in the above judgement, moderation is the method which can be adopted to reduce examiner subjectivity or examiner variability. This method of moderation may be necessary only in a case, where, in respect of the same subject valuation is conducted by different examiners while the pattern of examination is descriptive in nature. In other words, when the examination is descriptive in nature, there may be
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52 difference in the standard of valuation among various examiners and it is only to bring about uniformity in order to test the inter se merits of the candidates, the method of moderation is followed. Admittedly, in the instant cases, the method adopted is not moderation. Here, moderation method is also not necessary since the pattern of TET Examination is multiple choice questions where there is absolutely no chance for examiners subjectivity or examiners variability. Therefore, moderation method which has been elaborately dealt with in the above said judgement of the Hon'ble Supreme Court has got nothing to do with the instant cases. 57. Now, turning to the scaling method, in the above said judgement, the the Hon'ble Supreme Court has categorically held that to solve the problem of inter se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling method can be adopted only when the students are made to write examinations in different subjects at their option though the ultimate marks secured by the candidates will be the basis for selection. 58. For example, a candidate who has taken Mathematics can easily secure 100 out of 100 whereas a candidate who has taken English as his subject will find it difficult to get even 90 marks. If the candidate who has taken Mathematics as his subject and the candidate who has taken English
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53 as his subject are put in the very same scale, certainly, the candidate who has taken Mathematics as his subject will steal the entire chance. Similarly, the standard of question papers in various subjects may make the difference as the question paper in one subject may be easy whereas in the other it may be tough. In order to minimise the above anomaly, the method of scaling is adopted. Here in the instant cases, the method adopted is not scaling also and therefore, I need not elaborate various systems of scaling. 59. In the instant cases, the learned Advocate General would fairly submit that the method directed to be adopted under the impugned Government Order is neither moderation nor scaling , but it is only "grading". 60. In Sanjay Singh's case cited supra, the Hon'ble Supreme Court examined the reasons as to why the UP Public Service Commission adopted the scaling method instead of moderation. It was pointed out before the Hon'ble Supreme Court by the UP Public Service Commission that anomalies caused on account of examiner variability was engaging its attention and it was found that a candidate's score may depend upon the chance factor of whether his answers script is assessed by a lenient or a strict examiner; and that in an extreme case, while a candidate of a given merit may get a First Class/Division, another student of equal merit may be declared to have
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54 failed. Therefore, the Commission constituted a Committee to carry out an indepth study into the matter and suggest appropriate means to ensure that the evaluation was on more equitable basis. 61. According to the UP Public Service Commission, after making a thorough study of the situation the Committee submitted its report suggesting statistical scaling system as the viable method. It was also contended before the Hon'ble Supreme Court that the said scaling method was rational, scientific and reasonable and would lead to assessment of inter se merit of the candidates in a just and proper manner. The Hon'ble Supreme Court went on to examine whether the reasons stated by the Commission for adopting the scaling method were rational, scientific and reasonable and the same would lead to assessment of inter se merit of the candidates. After having examined the same, the Hon'ble Supreme Court held in para 36 as follows:- 36. ... ... ... The material placed does not disclose that the Commission or its expert committee have kept these factors in view in determining the system of scaling. We have already demonstrated the anomalies/absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another Committee of Experts. Till such new system is
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55 in place, the Commission may follow the moderation system set out in Para 23 above with appropriate modifications.” [Emphasis supplied] 62. From the above judgement, it is crystal clear that when the examining body decides to convert the actual marks secured by the candidates in the written examination into a scaled mark, the reasons for adopting such method of moderation or scaling should be stated. The Hon'ble Supreme Court has further held that the said system adopted should achieve the object of examining the inter se merits of the candidates leaving no anomaly. Applying the said principles to the facts of the instant cases, let us now have a look into the reasons, if any, stated by the respondent – Government for adopting the grading system to award weightage marks for the qualifying examinations and the TET. 63. In the counter filed by the Government, it is stated that in order to evolve the methodology for selecting the candidates, a committee was constituted and the committee held its meetings on 14.09.2012 and 24.09.2012. In the meeting of the Committee held on 14.09.2012, the following points were taken up for consideration [vide page 41 of the typed set of papers filed by the Government]:- “a. Regarding postponing the examination to December.
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56 b. For fixing additional Criteria.” 64. A further perusal of the minutes of the first meeting of the Committee would go to show that there was no discussion at all on 14.09.2012 regarding the methodology to be adopted for awarding of weightage marks. The next meeting of the Committee was held on 24.09.2012. The minutes of the said meeting has been filed by way of typed set [vide page 42 of the typed set of papers filed by the Government]. In the said meeting , it was minuted as follows:- “After the briefing by the Principal Secretary, School Education Department about the present position and the order issued, the Committee deliberated about the methodologies to be adopted for fixing additional criteria for selecting candidates for appointment from among those who have cleared the Teacher Eligibility Test. The Committee considered the selection methodology based on the weightage followed by Government of Andra Pradesh and Government of West Bengal. After which the Committee unanimously decided to recommend to the Government to adopt the modalities by giving weightage of marks for their academic qualification in 12th Standard, DTEd./DEEd. and TET for selection of Secondary Grade Teachers and 12th Standard, Degree, B.Ed., and TET for selection of Graduate Assistants as follows: ... ... ... ... ... ... ... ... ... ...
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57 ... ... ... ... ... ... ... ... ... ...” 65. A close perusal of the proceedings of the Committee would go to show that the Committee did not consider the merits and demerits of the grading system adopted. The Committee had only considered the methodology followed by the Government of Andhra Pradesh and Government of West Bengal and simply recommended to adopt the same. The Government also, before issuing G.O.Ms.252, did not examine as to whether the said method of grading is reasonable and whether the same would achieve the object, if any. As has been held by the Hon'ble Supreme Court in Sanjay Singh's case cited supra, I have to necessarily hold that without having any object to be achieved and without examining the merits and demerits of the grading system, the Committee had, in a mechanical fashion, recommended the method of grading simply because such method had been adopted by the States of Andhra Pradesh and West Bengal. The Government of Tamil Nadu also, in turn, had failed to examine the merits and demerits and reasonableness of such gradation and the object, if any, sought to be achieved. In such view of the matter, I hold that there is a total non application of mind on the part of the Government while issuing the impugned Government Orders. 66. Nextly, let us move on to the question as to whether the grading
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58 system adopted under the impugned Government Orders is rational, scientific and reasonable. In this regard, the learned Advocate General would submit that grading has been accepted to be a proper mode of assessing the inter se merits of the candidates by a Division Bench of this Court in P.Arunkumar v. State of Tamil Nadu, 2007 Writ LR 965. That was a case relating to admission of students in the I year M.B.B.S. Course by a private minority medical college. The process of selection and the procedure adopted by the college were put under challenge. One of the main grounds raised by the writ petitioner in that case was that the conversion of marks into grades under “stanine grading” method is not transparent and, therefore, selection made on the basis of the marks awarded under stanine grading system should be deemed to be not on merits. 67. Factually, in that case, the examination was conducted by the college in five papers each consisting of 60 marks. The questions were of objective type. Total marks for all the five papers put together was 300. The Division Bench found that “stanine method” of grading has been adopted in many universities across the world. Thus, stanine method has been universally accepted. The Division Bench has explained as to what the stanine method is, which reads as follows:- “The name stanine is simply a derivation of the
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59 term "star scale. Stanines are normalized standard scores, ranging in value from distribution has a mean of 5 and a standard deviation of 2. Stanines 2 are equal to a = standard deviation unit in width, with the middle stanine defined as the range of scores < of a standard deviation below to < of deviation above the mean. Stanines can, more easily, be thought of groupings of percentile ranks (see below), and like percentile ranks xxx status or relative rank of a score within a particular group. Due coarseness, stanines are less precise indicators than percentile ran times may be misleading (e.g., similar PR's can be grouped into different (e.g., PR=23 and PR=24) and dissimilar PR's can be grouped into stanine (e.g., PR=24 and PR=40)). However, some find that using stanine to minimize the apparent importance of minor score fluctuations, and helpful in the determination of areas of strength and weakness. Standard Score, Status Scores, Percentile Rank, Arithmetic Mean, and Deviation.” Eventually, the Division Bench held in paragraphs 42 and 43 as follows:-
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60 42. Therefore, it cannot be said that the Stanine Grade System is unknown in the method of selection for the reason that it is complicated and requires mathematically trained mind to understand. That itself cannot be a ground to brush aside the said method of selection, which can never be stated to be either prejudicial or discriminatory between the candidates. 43. It is not even the case of the appellants that this system amounts to mal-administration. There cannot be any imputation on the first respondent Institution in following the said system, which is certainly complicated and unique. These are the matters which are concerning the specialised mind and so long as they do not infringe the triple tests of selection, viz., merit, transparency and non-exploitative, one cannot say that the system should be ignored by lightly setting aside the importance of the same. Especially, as narrated above, the system has been used world wide and even in respect of the first respondent Institution, it is in un-interrupted use for the past five decades without any complaints.
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61 68. Making heavy reliance upon the same, the learned Advocate General would submit that in the instant case also, since grading has been adopted for awarding weightage marks, the same should be approved. But, the said argument does not persuade me at all for many reasons. First of all, as has been held by the Division Bench, stanine grading system is a well established method which has received the international approval in the field of statistics. The Division Bench also found that there were well established grounds necessitating using the said method. Therefore, the Division Bench in P.Arunkumar's case [cited supra] upheld the same. But, in the cases on hand, it is not as though any method which has received approval in the field of statistics has been adopted by the Government to grade the marks of the candidates. The learned Advocate General would fairly concede that in stanines method, there is a standard formula. Applying the said formula, raw marks secured by the candidates are converted into graded marks. Like the stanines method, there are many other methods approved in the field of statistics. But, no such approved method has been followed in the impugned Government Order to fix the grading methodology. Thus, the grading method prescribed in the impugned Government Order has got no scientific background so as to approve the same. The experts in the field of statistics were neither included in the Committee nor any opinion was obtained from such experts. The said Committee cannot be stated to be an expert body. The report of
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62 the Committee does not reflect any discussion on the necessity to prescribe this particular grading system and as to why this grading methodology was considered and with what object. In a blind manner, I regret to say, the Committee has evolved its own method simply because similar methods have been adopted by the Government of Andhra Pradesh and the Government of West Bengal. In such view of the matter, I hold that the judgement of the Division Bench in Arunkumar's case does not in any manner come to the rescue of the impugned Government Orders. 69. Now, once again turning to the judgement of the Hon'ble Supreme Court in Sanjay Singh's case, the Hon'ble Supreme Court had occasion to consider the earlier judgement in S.C.Dixit [AIR 2004 SC 163]. In S.C.Dixit's case, the validity of scaling was considered. The Hon'ble Supreme Court in S.C.Dixit's case had ultimately upheld the scaling on two conclusions namely (i) that the scaling formula was adopted by the Commission after an expert study and in such matters, court will not interfere unless it is proved to be arbitrary and unreasonable; and (ii) the scaling system adopted by the Commission eliminated the inconsistency arising on account of examiner variability. The Hon'ble Supreme Court further held in Dixit's case that as scaling was a recognized method to bring raw marks in different subjects to a common scale, such scaling system was introduced after a scientific study by experts.
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63 70. But, in Sanjay Singh's case, the Hon'ble Supreme Court did not agree with S.C.Dixit's case and, therefore, the Hon'ble Supreme Court overruled the S.C.Dixit's case. In para 37 of the judgement in Sanjay Singh's case, the Hon'ble Supreme Court has ultimately held as follows:- “37. ... ... ... ... But we have found after an examination of the manner in which scaling system has been introduced and the effect thereof on the present examination, that the system is not suitable. We have also concluded that there was no proper or adequate study before introduction of scaling and the scaling system which is primarily intended for preparing a common merit list in regard to candidates who take examinations in different optional subjects, has been inappropriately and mechanically applied to a situation where the need is to eliminate examiner variability on account of strict/liberal valuation. We have found that the scaling system adopted by the Commission leads to irrational results, and does not offer a solution for examiner variability arising from strict/liberal examiners. Therefore, it can be said that neither of the two assumptions made in S.C. Dixit can validly continue to apply to the type of examination with which we are concerned. We are therefore of the view that the approval of the scaling system in S.C. Dixit is no longer valid.” 71. From the above observations and conclusions arrived at by the
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64 Hon'ble Supreme Court in Sanjay Singh's case, it is crystal clear that before introducing any system to convert the raw marks into graded marks or scaled marks, or moderated marks, there has to be a scientific study conducted by the experts to evolve a system by which inconsistency or variability or anomaly, if any, should be minimised. In the cases on hand, as we have already observed, there was no such scientific study at all conducted by any expert body before introducing this particular grading system. It is also not stated as to what is the object sought to be achieved by introducing this system. It is not even identified as to what are the inconsistencies, anomalies, etc., which would be minimised by this system. 72. The Government also did not consider all these aspects before accepting the report of the committee. As has been held in Sanjay Singh's case, since there is no scientific study for prescribing this particular grading method and as to whether the same would minimise hardship or anomaly or inconsistency, if any, the impugned Government Order prescribing the present grading method cannot be accepted. The Division Bench in P.Arunkumar's case found that grading system was absolutely necessary to achieve certain identified objects, and the grading methodology adopted was also based on the “stanines grading methodology” approved by the world community. Since in the cases on hand, this particular grading methodology has been adopted by the
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65 Government without there being any object sought to be achieved, without there being any scientific study and without there being any accepted method, it has to be necessarily held that the grading methodology stipulated in the impugned Government Order suffers from arbitrary exercise of power of the Government. 73. Let us now examine as to whether the grading methodology prescribed in the impugned Government Order would in any manner enhance the process of selection to assess the inter se merits of the candidates. As we have already discussed, in paragraph No.48 of this order, a candidate who has secured 69.33% in TET gets 42 weightage marks as per the slab and similarly, the candidate who has secured only 60% of marks also gets the same 42 weightage marks. Likewise, a candidate who has secured 70% of marks gets 48 weightage marks; whereas the candidate who has secured 69.33% of marks gets 42 weightage marks. This in my considered opinion is a big anomaly. Thus, this system does not enhance perfection in assessing the inter se merit of the candidates in any manner. 74. But, the learned Advocate General would submit that in P.Arunkumar's case cited supra, the Division Bench has held that there is no violation of Article 14 of the Constitution of India by the system of
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66 grading. But a careful reading of the judgement would show that the Division Bench found that there was necessity for converting the raw marks into graded marks and also grading system was founded on a well accepted formula known as “Stanine Formula”. It was in those circumstances, the Division Bench held that there was no violation of Article 14 of the Constitution. But, in the instant cases, since we have found that there is no object sought to be achieved by this particular system of grading and since it is not made on the basis of any accepted formula by making a thorough scientific study and since the system adopted under the impugned Government Order is demonstrably irrational and unreasonable as it creates a lot of anomalies as the same and treats equals as unequals, and vice versa, I have to necessarily hold that the grading system adopted by the Government in the impugned Government Order violates Article 14 and 16 of The Constitution. 75. The learned senior counsel Mr.C.Selvaraj, appearing for the petitioners , in this regard, would rely upon a judgement of the Hon'ble Supreme Court in Raj Kumar and others v. Shakti Raj and others, (1997) 9 SCC 527 where the Hon'ble Supreme Court was invited to examine a similar issue. In Para 13 of the judgement, the Hon'ble Supreme Court has held as follows:- “13. The examination papers were of common
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67 standard and all were required to write the same examination. Under those circumstances, the appropriate procedure should have been to apply the marks as secured by them in the written examination plus the marks awardable to the respective candidates either on the academic qualifications or on the sports qualification or experience qualification or extra- curricular qualification or the marks actually secured in the via voce and to pool them as total marks secured by each candidates and the merit list should have been prepared in the light of the Rules. On the basis of the aggregate marks secured by candidates, select list should have been prepared and recommendation made to enable them to appear in accordance with the prescribed Rules: including the rule of reservation applicable to various categories mentioned in the Rules and allotment made to the respective circles as envisaged under 1955 Rules and all other rules issued in that behalf.” 76. The above said observation of the Hon'ble Supreme Court, in my considered opinion, cannot be taken as the law declared by the Hon'ble Supreme Court or principle enunciated. It is only a mere observation made depending upon the facts and circumstances of the case before the Hon'ble Supreme Court. It cannot be said as a universal rule that in all situations, the raw marks secured by the candidates in the written examination should alone be the basis for the selection.
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68 77. The learned Advocate General would nextly contend that Article 14 is the genus and Article 16 is the species. Therefore, according to him, if once it is held that there is no violation of Article 14, necessarily it has to held that Article 16(1) of the Constitution is also not violated. In other words, according to him, for the purpose of public employment, Article 14 and Article 16 of the Constitution are inseparable twins. In this regard, the learned Advocate General would make reliance on the judgement of the Hon'ble Supreme Court in Ajit Singh and others (II) v. State of Punjab and others, (1999) 7 SCC 209. The learned Advocate General would further submit that since the Division Bench of this Court in P.Arunkumar's case has held that grading system does not violate Article 14 , applying the same to the instant cases, it should be held that neither Article 14 nor Article 16(1) is violated. 78. In this regard, it may be seen that the law regarding inter- relationship between Article 14 and Article 16 has been reiterated in Ajit Singh's case in para 22 as follows:- “22. ... ... ... ... Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of
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69 opportunity for all citizens in the matters relating to employment or appointment to any office under the State". It has been held repeatedly by this Court that sub-clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said sub- clause particularizes the generality in Article 14 and identifies, in a constitutional sense "equality opportunity" in matters of employment and appointment to any office under the State. The word 'employment' being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. 79. Regarding the legal proposition as pointed out by the learned Advocate General, there is no controversy raised by any of the counsel before this court. The law is well settled that Articles 14 and 16(1) are closely connected and that Article 16(1) is a facet of Article 14. It is also too well settled that there is no compartmentalisation of a particular right under a particular Article in Part-III of The Constitution of India. In other words, the “theory of exclusivity” which was propounded in A.K.Goplan v. The State of Madras, AIR 1950 SC 27 was overruled in R.C.Cooper v. Union of India, AIR 1970 SC 564. Therefore, challenge to any particular provision of a law can be made either on the touch-stone of Article 14 or on the touch-stone of Article 16(1) or on both. Apart from the grounds upon which such challenge is made as against Article 14, on some different
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70 grounds or additional grounds, there can be a challenge as against Article 16(1) of the Constitution also. But, in the instant cases, the said debate is not required inasmuch as I have already concluded that the impugned Government Order prescribing the particular method of gradation of marks violates Article 14 and, therefore, I have no difficulty in holding that it violates Article 16 also. 80.1. The learned Advocate General would nextly rely on a judgement of a Division Bench of the Delhi High Court in Independent Schools Federation of India v. Central Board of Secondary Education and another [LPA No.563 of 2011 dated 11.08.2011]. That was a case where challenge was made to a circular issued by the CBSE introducing examination reforms thereby directing the schools to follow “Grading” as per continuous and comprehensive evaluation system. The learned single Judge, before whom the writ petition came up, held the view that an expert body like CBSE had taken the decision by consulting all stake holders and such policy decision could not be interfered with on the ground that a better, fairer or wider alternative policy is available. When that was challenged before the Division Bench, the division Bench went into the object of introducing the grading system. In para 9, the Division Bench has elaborately held as to how, the gradation would be helpful to the learners and parents who are the primary stakeholders of school education. It was
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71 stated by the CBSE before the Division Bench as follows:- a) It will reduce stress and anxiety which often builds up during and after the examination which could have an adverse impact on young students especially in the age group of 13-15 years. b) It will reduce the dropout rate as there will be less fear and anxiety related to performance. c) In the past there was practice to often finish the entire syllabus much before time and follow it up with Pre- Board(s) and study leave. 80.2. The Division Bench has found that primary function of Grading is to communicate effectively to a variety of stakeholders the degree of achievement of an individual student. The grading of student would also take away the frightening judgmental quality of marks obtained in a test leading to a stress free and joyful learning environment in the school. This will also enable maintaining a meaningful continuity in the assessment pattern from the primary level to the secondary level and also in ensuring a basic uniformity in the schools. 80.3. The Division Bench has further found out the following
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72 advantages of the said system:- “It will minimize misclassification of students on the basis of marks. It will determine unhealthy cut-throat competition among high achievers. It will reduce societal pressure and will provide the learner with more flexibility. It will lead to a focus on a better learning environment.” Having considered the above aspects, more particularly, the advantages of the system, in para 12, the Division Bench has held as follows:- “12. Thus scrutinized, it is evident that the CBSE has kept in view the interest of the young students and taken a policy decision to introduce a different evaluation system. What is urged before us is that such a system is arbitrary, unreasonable and irrational as it corrodes the marrows of education by annulling the earlier system which provided for competing in the board examination and obtaining marks.” 80.4 In para 13, the Division Bench of the Delhi High Court has ultimately held as follows:- “13. Though the learned counsel for the appellant would criticize such norms on certain grounds which we have indicated hereinbefore yet this Court is not an expert to judge the decision of the
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73 CBSE that has been arrived at after undertaking detailed exercises. It is a policy decision and that too a policy decision relating to the field of education. One may not be in a position to accept the same. To some, it may look like abolition of competition and to others it may look simplistic. There may be a few who may feel that in the name of change, a cosmetic approach has been done and it could have been better. But, a significant one rider and limitation, the role of the Court in exercise of judicial review is limited. In the University of Mysore and another. v. C.D. Govinda Rao & another, AIR 1965 SC 491, it has been held that Courts should be slow to interfere with the opinions expressed by the experts and the same should be left to the decision of the experts who are more acquainted and familiar with the problems.” 81. A cursory perusal of the above judgement would go to show that having regard to the nature of the scheme, more particularly, as to how the scheme will be helpful to the student community and the other stakeholders and as to how it will be advantageous for various stakeholders and as to how it will not cause any infringement to equality, the Division Bench held that the above methodology of grading the students will not be violative of Article 14 of the Constitution of India. 82. Though the learned Advocate General made heavy reliance on the
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74 said judgement, to substantiate his contention that gradation will not be violative of Article 14 of the Constitution of India, it cannot be in a mechanical fashion applied to all grading systems. Before the Division Bench of the Delhi High Court, there were so many justifying or reasonable grounds upon which it concluded that there was no violation of Article 14 of the Constitution. But , in the instant cases, as I have already pointed out, the grading method adopted has got no scientific background. It has got no object to be achieved. It creates lot of anomalies. For these reasons, I have to hold that the grading system adopted in the impugned Government Order is surely violative of Article 14 and Article 16 (1) of the Constitution of India. 83. In Sanjay Singh's case, cited supra, in para 34, the Hon'ble Supreme Court has held as follows:- “34. When selections are made on the basis of the marks awarded, and the inter se ranking depends on the marks awarded, treating unequals equally, or giving huge marks to candidates who have secured zero marks in some subjects make the process wholly irrational, virtually bordering on arbitrariness. It is no doubt true that such irrationality may adversely affect only those cases which are at either end of the spectrum, and if they are excluded, by and large the scaling system may be functional. But if the extreme cases are even 20 out of 5000 for each of the subjects, it becomes 100 for 5 subjects, which means
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75 that the results of as many as 100 are likely to be affected. It may be more also. In that process, at least 5% to 10% of the vacancies are likely to be filled up by less meritorious candidates. This will lead to considerable heart-burn and dissatisfaction. When the object of the selection process is to try to select the best, and even one mark may make the difference between selection or non-selection, the system of scaling which has the effect of either reducing or increasing the marks in an arbitrary manner will lead to unjust results. This is in addition to the main disadvantage that scaling does not remedy the ill- effects of examiner variability arising out of strictness or liberality in valuation.” [Emphasis supplied] 84. In the light of the above observations of the Hon'ble Supreme Court, if we examine the cases on hand, it is crystal clear that every single mark obtained by a candidate makes a lot of difference between selection and non-selection. Therefore, any system that may be adopted for awarding of weightage marks as per the proportion mentioned in the Government Order should be a real test to examine the inter se merits of the candidates. Let us now make an attempt as to whether any other reasonable system could be evolved. 85. The Government has taken a policy decision to make selection on
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76 the basis of weightage marks to be awarded for academic qualifications and the TET. This is not under challenge. For Graduate Assistants, the total weightage marks shall be 100 which shall be distributed as 10 marks for Higher Secondary Exam, 15 marks for basic Degree Exam, 15 marks for B.Ed., Exam and 60 marks for TET. In other words, the marks obtained in academic qualifying examinations and TET are not given equal weightage marks. This is also not challenged. The distribution of weightage marks is in the proportion of 10:15:15:60 respectively for Higher Secondary, Degree, B.Ed., and TET. While evolving any system of grading to convert the raw marks into the graded marks, the above proportion should be strictly adhered to. Let me now illustrate as to how by adopting the following system, the proportion could be adhered to without causing any harm to the inter se merits of the candidates. Illustration (1) :- [For Graduate Assistant] 86.1. Let us assume that a candidate has secured 1020 marks in Higher Secondary Examination out of 1200. It is equivalent to 85%. Similarly, he has secured 80% in Degree Examination; 75% in B.Ed., Examination; and 70% in TET Examination. As per the computation of marks for Graduate Assistant in terms of the Government Order, 10 marks is awarded to Higher Secondary Examination, 15 is awarded to Degree Examination, 15 is awarded to B.Ed., Examination and 60 is awarded to TET
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77 Examination. This would go to show that more weightage mark is given to TET. This ratio namely 10:15:15:60 for Higher Secondary, Degree, B.Ed., and TET respectively should be adhered to while awarding weightage marks. This proportion can be maintained in the following manner, i.e., the percentage of marks secured can be further reduced to the above proportion. For example, in the illustration above, (a) for 85% of marks secured in Higher Secondary Examination, weightage marks shall be as follows:- 85 X 10 ÷ 100 = 8.50 (b) For 80% of marks secured in Degree Examination, the weightage marks shall be as follows: 80 X 15 ÷ 100 = 12.00 (c) For 75% of marks secured in B.Ed., Examination the weightage marks shall be as follows: 75 X 15 ÷ 100 = 11.25 (d) For 70% of marks secured in TET Examination, the weightage marks shall be as follows: 70 X 60 ÷ 100 = 42.00 Total weightage marks = 73.75 86.2 In this method, for every one percentage of mark in Higher Secondary, the weightage mark is 0.10, for every one percentage of mark in Degree, the weightage mark is 0.15, for every one percentage of mark in
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78 B.Ed., the weightage mark is 0.15 and for every one percentage of mark in TET, the weightage mark is 0.60. Illustration (2) :- [For Secondary Grade Teachers] 87.1. Let us assume that a candidate has secured the following marks:- Higher Secondary Exam : 85% D.T.Ed.,/D.E.Ed., Exam : 80% TET : 75% 87.2. As per G.O.Ms.No.252, the weightage marks to be awarded are as follows:- Higher Secondary Exam : 15 D.T.Ed.,/D.E.Ed., Exam : 25 TET : 60 Total 100 Thus, the ratio is 15:25:60 87.3. Applying the said ratio, for 85% of marks in Higher Secondary Examination, the weightage mark shall be
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79 85 X 15 ÷ 100 = 12.75 For 80% of marks in D.T.Ed., / D.E.Ed., Examination the weightage mark shall be 80 X 25 ÷ 100 = 20.00 For 70% of marks in TET Examination, the weightage mark shall be 70 X 60 ÷ 100 = 42.00 Thus the total weightage mark is 74.75 87.4. In this method, for every one percentage of mark in Higher Secondary, the weightage mark is 0.15, for every one percentage of mark in D.T.Ed.,/D.E.Ed., the weightage mark is 0.25 and for every percentage of mark in TET, the weightage mark is 0.60. 87.5. If this method is adopted, in my considered opinion, there will be no anomaly or inconsistency or discrimination. In my opinion, this method clearly distributes the appropriate weightage marks as per the ratio. This method is scientific, flawless and reasonable. This is only a suggestion from this court and it is for the Government of Tamil Nadu to consider the same as to whether this method can be followed or any other better method can be followed. At any rate, it is made clear that the present grading
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80 system is highly arbitrary and discriminatory and, therefore, the same cannot be the basis for selection. 88. The learned Advocate General , finally, contended that it is the policy decision of the Government, into which, this court cannot interfere with. In this regard , I may refer to the judgements of the Hon'ble Supreme Court in State of U.P.V. Renusagar Power Co., Ltd, 1988 (4) SCC 59, Tata Iron & Steel Co. Ltd. v. Union of India, 1996 (9) SCC 709, Federation of Railway Officers' Association v. Union of India, 2003 (4) SCC 289). Before the Hon'ble Supreme Court in Sanjay Singh's case cited supra, the above judgements were quoted and argument was advanced that the courts should not interfere with the matters affecting policy requiring technical expertise and the Courts should leave them for decision of experts. In para 39 of the said judgement, the Hon'ble Supreme Court while rejecting the said contention, has held as follows:- “39. Learned counsel for the Commission also referred to several decisions in support of its contention that courts will be slow to interfere with matters affecting policy requiring technical expertise and leave them for decision of experts (State of U.P. v. Renusagar Power Co. Ltd., 1988 (4) SCC 59,Tata Iron & Steel Co. Ltd. v. Union of India 1996 (9) SCC 709, Federation of Railway Officers
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81 Association v. Union of India 2003 (4) SCC 289). There can be no doubt about the said principle. But manifest arbitrariness and irrationality is an exception to the said principle. Therefore, the said decisions are of no avail.” 89. In the cases on hand, as I have already concluded, the grading system prescribed under the impugned Government Order is manifestly discriminatory, irrational and arbitrary which can be found out even without the help of any expert. Therefore, it is the constitutional obligation of this court to set aside the same instead of leaving the same to perpetuate. It is not as though a policy decision of the Government cannot be subjected to judicial review at all. If it is found that the policy decision of the Government violates any of the fundamental rights guaranteed under the Constitution, the same can be subjected to judicial review and interfered with in view of the mandate of Article 13(2) of the Constitution of India. 90. In W.P.Nos.7213, 7315, 7316, 7317, 7754, 7755, 7756 and 7757 of 2014 the petitioners have challenged G.O.Ms.No.25 and G.O.Ms.No.29 and they have also prayed for a direction for making selection as per G.O.Ms.No.252. Since I have already held that G.O.Ms.No.25 is valid, to that extent, the challenge made in these writ petitions has to fail. So far as G.O.Ms.No.29 and G.O.Ms.No.252 are concerned, since I have held that
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82 gradation method adopted in these two Government Orders is unconstitutional, the relief sought for by the petitioners for a direction to award weightage mark as per G.O.Ms.No.252 cannot be granted. As a result, these writ petitions are liable only to be dismissed in toto. 91. I am conscious of the fact that in this State, because of the poor performance of the candidates in the TET Examinations and because of the welcome policy of the Government that there shall be no compromise in the quality of teachers, the Government is struggling to fill up the vacancies in the Government Schools which mostly cater the needs of poor and middle class children. Though the TRB conducted the TET Examinations in August 2013, it could not complete the process of selection of candidates, because of various legal tangles. Since the next academic year is fast approaching, I wanted to relieve the TRB from all legal tangles as far as possible so that the TRB could be free to go-ahead with the selection process and at least at the beginning of the next academic year [2014-2015] the vacancies will be filled up for the benefit of the children in the Government Schools. That is the reason why, I have given much importance to these cases relating to TRB and I have almost disposed of all the cases which were pending on my board. I am sure that the disposal of the instant batch of cases will make the TRB to go ahead with the selection of candidates for the posts of Secondary Grade Teachers and Graduate Assistants. Having regard to the
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83 urgency of the matter, I am hopeful that the Government will either adopt the method which I have suggested herein above or some other method which will have scientific rational basis so as to enable the TRB to complete the process of selection. 92. In the result, (1) (i) W.P.Nos.6648 and 10849 of 2014 relating to challenge made to G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014 are dismissed. No costs. Consequently connected MPs are closed. (ii) W.P.Nos.5591, 5680, 5842, 5843, 6361, 7626, 7859, 9008 and 10843 of 2014 wherein the petitioners have prayed for giving retrospective operation of G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014 and G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014 to the TET Examinations held in the year- 2012 are dismissed. No costs. Consequently connected MPs are closed. (iii) W.P.Nos.2780, 2781, 2782, 4182, 4183, 4184, 5590, 5985, 7146, 7371, 7681, 8354 and 10850 relating to challenge made to G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 prescribing the method for awarding weightage marks for selection of
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84 Secondary Grade Teachers and Graduate Assistants are all allowed and G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 and G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014 shall stand set aside only in respect of grading method prescribed for awarding weightage marks. No costs. Consequently connected MPs are closed. (iv) W.P.Nos. 7213, 7315, 7316, 7317, 7754, 7755, 7756 and 7757 of 2014 are dismissed. No costs. Consequently connected MPs are closed. (2). The Government is directed to issue a Government Order expeditiously prescribing any other scientific rational method for awarding weightage marks for Higher Secondary, D.T.Ed.,/D.E.Ed.,/Degree/B.Ed.,/TET for Secondary Grade Teachers / Graduate Assistants, as the case may be and make selection accordingly. (3) I am hopeful that the Government will ensure that the selection process is completed and vacancies are filled up at least at the beginning of next academic year. kmk/kk
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85 To 1.The Secretary to Government, School Education (TRB) Department, Secretariat, Chennai 600 009. 2.The Chairman, Teachers Recruitment Board, Chennai 600 006. 3.The Member Secretary, Teachers Recruitment Board, Chennai 600 006. 4.The Director of School Education, Chennai 600 006. 5.The Director of Elementary Education, Chennai 600 006.




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